Teachers to Teach
As it is in the game of chess, successful litigation requires planning several moves ahead. This observation may seem banal, however, the experience of the Legal Resources Centre (LRC) in certain matters relating to the right to education in the Eastern Cape suggests that it is less vapid than one may at first consider. A case has to be built on the basis that it may be contested in court, while at the same time recognising that the Eastern Cape Department of Education (ECDOE) will likely – if its track record is anything to go by – agree to the LRC’s terms which will then be made an order of court.
Then, over and above the usual considerations requisite for building a robust case, experience has shown that measures must be built into one’s case in anticipation that the Department will fail to comply with the court order. In crafting these measures, the LRC has had to ensure that they are forceful without being in exible. Furthermore, given the myriad of potential ways a party may nd themselves in breach, the LRC has had to craft ways to coerce compliance while reserving scope to facilitate its continued constructive involvement in the matter.
This section traces the development of a case the LRC has been involved with since May 2012, as an example of the extent to which strategic litigation requires anticipating all potential outcomes and especially non-compliance with an order by agreement.
Background to the Case
In early 2012 it had become apparent that the state of education in the Eastern Cape was dire. Problems included inadequate infrastructure, failure to provide necessary furniture, budgetary shortfalls and administrative inefficiencies. Judge Plasket described the effect of these as, “a crisis of immense and worrying proportions” and that, “the right to basic education of those who attend public schools in the Eastern Cape province is affected or threatened.” These concerns were echoed in a statement issued by the Minister of Education in February 2011, where one of the foremost concerns in this regard was the “effective and credible allocation of educators to schools”. By late 2012 it had become apparent that there were more than 4,000 vacant teaching posts as well as over 7,000 teachers in excess in the Eastern Cape. Furthermore, due to union intervention and lack of political will, these surplus teachers had not been moved.
The Department’s failure to take the necessary steps to allocate teachers to vacant posts, as well as its unwillingness to move teachers in excess between schools, reached a crescendo in early 2012: the peak in over a decade of failures in this regard. The result was that many public schools were being placed in a situation of crisis and financial peril. A number of schools had taken it upon themselves to appoint temporary teachers at their own expense, the consequence of which was financially crippling. Some schools were unable to a ord such measures and had to rely on emergency donations from parents to pay their teachers. There were cases in which such teachers were working for as little as their bus fare. There were schools, however, that were completely without the means to pay additional educators and, in these cases, either the teachers went without pay, hoping to be compensated in the future, or the learners went without a teacher.
In a province with increasingly dismal matric results, this lack of educators was set to have disastrous results. Not only did thousands of children go without an educator, in many cases for over a year, but the financial strain on many schools was impairing their ability to adequately fund other critical items such as nutrition programs, textbooks, stationary, infrastructure and scholar transport. In broad terms this meant over 100,000 learners now having to commute to school on foot, many learners not being fed at least one meal per day, and countless hours of productive learning undermined.
The First Round of Litigation
After numerous letters to the Minister and senior o cials within the Department and the National Department setting out concerns with the on- going failure to appoint teachers, the overall response was nebulous at best. On the 10th of May 2012, after being approached by a number of schools facing desperate situations, the LRC sent a letter stating that if necessary steps were not taken to rectify the situation, it would become necessary to approach the court. When no substantial response was received, the LRC – amongst others – launched a court application.
The relief sought by the LRC on behalf of the Centre for Child Law (CCL) in an application made in the Grahamstown High Court on the 31st of May 2012 was largely two fold. In the first regard, it asked that the court order the Minister or the Head of the Department of Education to ll all vacant posts on a permanent basis within three months of the court order. Furthermore, as a stepping-stone to this, that temporary educators were to be appointed to all such posts within one month. In the second regard, the LRC sought to rectify the dire financial situation that the schools and teachers were faced with by asking the court to order that the salaries of all of the educators that were appointed, be paid from the date on which they assumed duty.
In drafting its notice of motion, the LRC recognised from past experience with the Department that there was a strong likelihood that the terms of their application would be accepted without substantial variance and made an order of court by consent. It was, therefore, possible to be reasonably bold with its requests. This approach was warranted given the severity of the situation as well as the strong case that had been built against the Department.
In addition, recognising the need to monitor compliance with the court order, the LRC built into their application reporting requirements. These were designed to enable interested parties to inspect the Department’s progress as well as facilitate constructive assistance from all sides.
The terms of the application were largely accepted by the respondents and on the 3rd of August 2012 were made an order of the court. The only term that was not accepted by the respondents was the appointment of non- educator posts to schools, which culminated in an argument and a judgment of Plasket J on 3 August 2012.
Failure to Comply with the Court Order
Over the following months the Department continued to fail to appoint and remunerate the educators as required, although they did take steps to appoint and pay some educators on a temporary basis. They did this despite consenting to the order of court and despite the provincial legislature voting for a budget providing for these posts. In the reports led by the Department it became apparent that not only had the vacant posts not been filled by as late as 31 January 2013, but they raised no legal defence as to why this was the case. Instead, the reports made it clear that a combination of internal ine ciency, incompetence and trade union resistance was to blame for the failure to appoint the necessary educators. By this stage, according to statistics provided by the Department of Basic Education, the number of teachers in excess had reached a total of 7,152 while the number of vacant posts had risen to 8,479. Furthermore, many schools continued to endure the financial crisis caused by the Department’s failure to remunerate the teachers as they had agreed.
As the 2013 academic year advanced, it became increasingly clear that the ineptitude of the Department placed it in contempt of the court order that it had agreed to. This seriously undermined the dignity of the court, the effectiveness of the Constitution, and respect of the rule of law. More distressingly, this ineptitude was shepherding a whole generation of students to the gates of failure, not only in the classroom, but also in becoming productive members of society.
Furthermore, this agrant disregard for the court order occurred despite a sequence of communication between the LRC and the Department, beginning on the 3rd of August 2012, specifically designed to facilitate the latter’s compliance. Through this communication, the LRC continually provided information on the position in various schools, warned the Department of anticipated breach, and advised them on the full scope and application of the court order. By the 25th of January 2013 the LRC and CCL were left with no choice but to advise the Department of their intention to launch further legal proceedings if the situation was not recti ed.
The Second Round of Litigation
When conceptualising a second round of litigation, the LRC and CCL recognised that securing a judgment against the Department would not be sufficient to rectify the problems that Eastern Cape public schools were facing. Clearly the threat of being in contempt of a court order was not an incentive that would spur the Department into action. Instead, the LRC would have to craft its notice of motion in anticipation that the Department would likely agree to its terms, and then fail to abide by the court order.
The approach taken by the LRC and CCL was, therefore, a departure from the first round of litigation. At the heart of their new approach was a shift in the onus placed on the Department.
In the past the Department had always been required to act positively to achieve the desired result. Such positive action was, however, never undertaken. In the face of this failure, the new notice of motion was drafted in such a way that the desired result would be achieved if the Department failed to act. The focus of the litigation was also narrowed in order to monitor compliance more effectively. Thus the LRC and CCL moved from an approach that would bene t all schools in the Eastern Cape to an approach that would bene t a select number of schools.
This nuanced approach to the onus on the Department was achieved in two phases. The first phase, which was agreed to by the parties and made an order of court on the 7th of March 2013, provided for the temporary appointment of over 140 teachers. Instead of requiring that the Department take the necessary steps to appoint such educators, this order provided a list of temporary appointments that the LRC had arranged in consultation with the relevant schools, i.e. named educators appointed to named schools with effect from date of assumption of duty. In addition, the Department was given the right to terminate such appointments under certain circumstances.
A vital part of this agreement was an undertaking by the Department to remunerate all of the listed educators from the date that they assumed duty. The bene t of this approach was realised when the Department failed to pay the newly appointed educators by its agreed deadline and, on the 13th of May 2013, the LRC was able to make an application for the payment of these amounts. This effectively made the Department liable for an ascertainable debt, which could be enforced in terms of the State Liability Act 20 of 1957. Under the threat that State assets may be attached to satisfy the debt, the Department made the necessary payments. This was a major breakthrough in a long line of attempts to remunerate many teachers for the work that they had been doing.
The second phase was to provide for the permanent appointment of teachers. The same shift in onus was adopted and, on the 6th of June 2013, the Department agreed to a court order confirming that certain named educators were to be appointed on a permanent basis and remunerated accordingly. Furthermore, it empowered schools that still had vacant posts to take the steps necessary to advertise, shortlist, interview and recommend educators to the Department for appointment. Importantly, it was agreed that if the Department failed to take action on the recommendation after a certain time period, these educators would be deemed to be appointed.
Also included in this second phase was a provision for dealing with the non-payment of educators. The LRC anticipated a failure to pay the salaries and the court order declared that if there was such a failure to pay the salaries, they were declared to be an ascertainable debt. This avoided having to approach the court again for this relief. At the date of writing this article, the Department had failed to meet certain agreed deadlines for the payment of educators and the LRC has taken steps under the State Liability Act 20 of 1957 to get satisfaction for such amounts. This entails the attachment of State assets which can be sold if the debt is not satis ed within 30 days of attachment. It would appear further that this new approach to litigation has begun to be taken seriously by government, with the Minister of Finance seeking to arrange a meeting with the LRC to discuss the remuneration of educators in the Eastern Cape.
The experience of the LRC and CCL in recent dealings with the Department has shed new light on the importance of strategic litigation. By anticipating noncompliance with a court order and building provisions into one’s application to adequately deal with this eventuality, it becomes possible to achieve results beyond what would have ordinarily been possible. In this way the LRC has been able to capitalise on the Department’s willingness to avoid litigation, and by placing a reverse onus on the Department, it was possible to make signi cant advances in the process of appointing and remunerating educators in the Eastern Cape. The importance of thinking ahead and thoroughly planning for all possibilities when undertaking public interest litigation must, therefore, not be under estimated.
In the High Court of South Africa (Eastern Cape High Court: Grahamstown)
Case No. 1749/2012
Date Heard: 26/07/2012
Date Delivered: 03/07/12
In the matter between:
The Centre for Child Law
The Governing Body Oatlands Preparatory School
The Governing Body St Mary’s RC School
The Governing Body Mary Waters High School
Bethelsdorp SGB Unit
The Governing Body Alphendale High School
The Governing Body Cape Recife High School
The Governing Body PJ Oliver Hoërskool
The Minister of Basic Education
The Director-General, Department of Basic Education
The Member of the Executive Council, Department of Basic Education Eastern Cape Province
The Head of Department, Department of Basic Education Eastern Cape Province
National Association of School
Education – Effect of intervention in terms of s 100(1)(b) of Constitution – whether respondents obliged to declare post establishment of non-educator staff of public schools in the Eastern Cape Province, and to fill such posts
1. This case concerns the fundamental right of children attending public schools in the Eastern Cape province to a basic education, which is enshrined, without quali cation, in s 29(1) (a) of the Constitution, which states that everyone has the right ‘to a basic education, including adult basic education’.1 It is no exaggeration to say that as a result of what, on the respondents’ own admission, is a crisis of immense and worrying proportions, the right to basic education of those who attend public schools in the Eastern Cape province is affected or threatened. That fact renders the dispute in this matter justiciable and makes the dispute the business of the courts.
2. This case arose when the six original applicants brought an urgent application in which they (in essence) sought orders to compel the respondents to implement the 2012 educator post establishment, which had already been declared, by making appointments to vacant posts by a specified date; to pay by a specified date the salaries of temporary teachers who had not been paid; to employ and pay teachers appointed by school governing bodies to vacant posts; to declare the 2013 educator post establishment, which would include non-teaching staff, by specific dates; to make appointments to all vacant established posts, in respect of teachers and non-teaching staff; and to report to the court on progress in the implementation of these orders and to make the reports available for inspection at district o ces and to the parties. They also sought costs.
3. The original applicants are the Centre for Child Law, the governing bodies of Oatlands Preparatory School, Saint Mary’s RC Primary School, Mary Waters High School (all in Grahamstown) and Alphendale High School in Port Elizabeth, as well as a body called the Bethelsdorp SGB Unit which represented a number of school governing bodies, mostly in the northern areas of Port Elizabeth. Later, the Cape Recife High School, a special needs school in Port Elizabeth, and the PJ Olivier High School in Grahamstown applied successfully to intervene as applicants. In addition, the National Association of School Governing Bodies, a voluntary association of 7000 school governing bodies, was admitted as an amicus curiae. The standing of the applicants, in terms of s 38(a), (b), (c), (d) and (e) of the Constitution, is not challenged.2
4. The respondents are the Minister of Basic Education and her Director-General, in the national sphere of government, and the MEC for Basic Education and the head of his department, in the provincial sphere. The Minister and her Director-General were cited as respondents because the Minister took a decision to place the Eastern Cape Department of Basic Education under the administration of the national government in terms of s 100(1)(b) of the Constitution, and her Director-General is the functionary responsible for the execution of that administration. The MEC for Basic Education is cited as a nominal respondent on behalf of the Eastern Cape provincial government, as the ‘bearer of the constitutional and statutory powers and duties’ related to basic education in the province, as the ‘administrator’ for purposes of the Promotion of Administrative Justice Act 3 of 2000 and as the functionary who ‘declared/ established the Educator Post Establishments for the Eastern Cape Province in terms of section 5(1)(b) of the Employment of Educators Act 76 of 1998’. The head of the provincial department is cited as a respondent because he bears certain constitutional and statutory powers and obligations by virtue of his o ce and because he is the employer of all teachers at public schools in the province.
5. Much was made in the papers and, to an extent in argument, about what the implications of the intervention in terms of s 100(1)(b) were in respect of the powers, functions and duties of the Minister and her Director-General. In view of the fact that there has been a divergence of opinions expressed on this issue, and consequent confusion as to where powers, obligations and responsibilities ultimately lie, it is necessary to deal with the issue briefly.
6. The Constitution allocates powers to three spheres of government, the national, the provincial and the local sphere. Generally speaking, one sphere of government may not usurp the powers of another sphere. Section 100 of the Constitution, however, allows for the national government to intervene in a provincial administration in certain de ned instances. Section 100 (1) reads as follows:
‘(1) When a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure ful lment of that obligation, including-
(a) issuing a directive to the provincial executive, describing the extent of the failure to ful l its obligations and stating any steps required to meet its obligations; and
(b) assuming responsibility for the relevant obligation in that province to the extent necessary to-
(i) maintain essential national standards or meet established minimum standards for the rendering of a service;
(ii) maintain economic unity;
(iii) maintain national security; or
(iv) prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole.’
7. The Constitutional Court has given a succinct answer as to the effect of s 100(1)(b). In Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and others3 Jafta J said:
‘The scope of intervention by one sphere in the affairs of another is highly circumscribed. The national and provincial spheres are permitted by ss100 and 139 of the Constitution to undertake interventions to assume control over the affairs of another sphere or to perform the functions of another sphere under certain well-de ned circumstances, the details of which are set out below. Suffice it to say that the national and provincial spheres are not entitled to usurp the functions of the municipal sphere, except in exceptional circumstances, but then only temporarily and in compliance with strict procedures.’
8. While the court was dealing with powers assigned to the local sphere of government, the observations that it made apply equally to the situation where, as in this case, the national sphere of government has, in terms of s 100(1) (b) intervened in a province’s administration: when it does so, it assumes the powers of the provincial administration, and it also assumes its obligations. This must be so in the light of what the Constitutional Court said of the purpose of the s 100 power in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996.4 It held that s 100 provides that ‘when a province cannot or does not ful l an executive obligation the national executive may take appropriate steps to ensure fulfilment of that obligation5, and that what is contemplated is ‘either to put the province on terms to carry out its obligations . . . or to assume responsibility for such functions itself to the extent that it is necessary to do so for any of the purposes set out in NT 100(1)(b)’.6 Ms Collett, who appeared for the Minister and the Director-General, accepted, correctly in my view, that the position set out above is indeed correct.
9. The parties have settled all of the issues in dispute save one, which I am required to determine. (The settlement envisages an order similar to that which had been sought in the notice of motion.) The issue that was argued before me and which I am required to decide is whether, for purposes of 2013, the respondents are under a statutory obligation to declare the post establishment on non-teaching staff at public schools and to ensure that those posts are filled.
10. The prayers in which reference to non-teaching staff appear are prayers 8 and 9 of the draft order. They read:
‘8. The First and Fourth Respondents are directed to declare the 2013 establishment(s) for public schools in the Eastern Cape in terms of section 5(2) of the EEA or the Public Service Act, Proc 103 of 1994 (as applicable) by not later than 30 September 2012, such establishment(s) to include posts in respect of educators [and non-educator personnel].
9. The First to Fourth Respondents shall ensure that the 2013 educator establishment(s) for public schools declared in terms of paragraph 8 above consist of posts that are fully funded, and to ensure that educators [and non educator personnel] are appointed to, and assume, these posts, by no later than 31 January 2013.’
11. The background to the dispute between the parties is set out in detail in the papers. It is, I believe, fair to say that most of it is common cause and that all of the parties acknowledge that a serious problem exists in respect of the administration of basic education in the Eastern Cape.
12. At the heart of the problem lies the longstanding failure of the provincial Department of Basic Education to attend to post provisioning. This failure has endured for over a decade. The result is that some schools have more teachers than necessary while others have too few teachers, with consequent prejudicial effects on teaching and learning. As the provincial department failed to take steps to transfer surplus teachers to where they were required, the budget spiralled out of control because teachers at under-resourced schools were appointed to ll vacant posts on a temporary basis.
13. This created its own set of problems when, in order to cut costs, the provincial department dismissed some 4 000 temporary teachers, only to be compelled by the court to re-instate them. Other casualties of this abject lack of management were the school nutrition program, which provided a meal a day for school children, and the school transport scheme, which allowed for scholars to be conveyed to and from school instead of having to walk long distances.
14. The nature and extent of the crisis was recognised by the national Department of Basic Education. In a document dated 24 February 2011 entitled ‘Statement of Intent on the Remediation of the Present Challenges in Basic Education in the Eastern Cape Province’ (that strangely and inexplicably has been classi ed as top secret) the Minister expressed the view that ‘the problems being encountered in basic education in the Eastern Cape province are extremely serious’ and that the ‘consequences of these problems are such that many learners in the province are already being denied their full rights to quality basic education’.
15. The Minister identified a major cause of the crisis as being ‘the weak capacity of the Eastern Cape Education Department to discharge its obligations effectively in respect of policy compliance; effective and efficient budgeting, planning and expenditure; and effective support of the pedagogic and administrative processes in schools . . .’. She concluded that the cumulative effect of the problems that she identified ‘have given rise to a situation where many learners are being deprived of their Constitutional right to education’. This document proposed the s 100 intervention that duly came to pass.
16. This case now only concerns one of the areas of concern identified by the Minister, namely the provincial department’s failure to provide effective support for administrative processes in schools in the province. That failure has the same effect as the failure to erect proper post provisioning for teaching staff: without proper administration in schools, the right of scholars to basic education is threatened. I shall illustrate the point with reference to the situation at two schools, Mary Waters High School in Grahamstown and Cape Recife High School in Port Elizabeth.
17. Mary Waters High School is a non-fee paying school. It is attended by 1087 scholars, most of whom are members of poor families. The school has not received funding from the provincial department for 2012 and so has been unable to fund such programs as the school nutrition program. Its post establishment for teachers in 2012 is 38 but it only has 27 permanently employed teachers plus four teachers who are employed on a temporary basis. As far as non-teaching staff is concerned, Mr Errol Goliath, the chairperson of the governing body, says the following in his affidavit:
‘Mary Waters also has a severe lack of non- teaching staff. It was only allotted one cleaner and one security guard for its entire school. It was allotted no administrative posts and the SGB must pay for these positions through its own funds. There has been no secretary or receptionist at the school for 10 years.’
18. Cape Recife High School caters for scholars with special education needs due to specific learning disabilities, physical disabilities, cerebral palsy, autism, hearing impairment, sight impairment and multiple disabilities. It is, according to Mr John Dakin, the chairperson of its governing body, ‘well known for its high educational standards and excellent matric results’ and it is regarded as ‘one of the leading schools of its kind in the country’.
19. The school has 385 scholars from grade R to grade 12. The classes are, of necessity, small and the teaching staff is supported by a multidisciplinary team of remedial teachers, physiotherapists, occupational therapists, speech language therapists, a nursing sister and psychologists. As the school also has a boarding establishment and runs a transport service for scholars still more support staff is needed for these and related activities.
20. Its educator establishment has been determined to consist of 50 posts but at present 18 posts are vacant. In 2008, the school received a post allocation for non-teaching staff . The provincial department decided that it required 77 such posts but because of what is described as a moratorium on the appointment of non-teaching staff only 22 of those posts are filled. Mr Dakin says that there are vacancies for one administrative officer, one senior housekeeper, eight cleaners, four drivers, 12 therapy aides, 16 teacher aides, three security guards, two social workers, three nurses, two psychologists, one hostel superintendent and one hostel supervisor.
21. The situation at Mary Waters High School and Cape Recife High School in respect of the shortages of non-teaching staff only has to be stated for the size and nature of the problem to be apparent. If the administration and support functions of a school catering for over 1 000 scholars, as in the case of Mary Waters High School, or of the nature and complexity of Cape Recife High School, cannot perform properly because of staff shortages, not only does this have a knock-on effect on the right to basic education but it also has the potential to threaten other fundamental rights. Where hostels are understa ed, for instance, or security is lacking, the rights to dignity and to security of the person, as well as children’s rights in terms of s 28 of the Constitution, may be implicated. When administrative capacity in a complex institution like a school is non-existent, administration either breaks down or has to be performed by teachers who have to deviate from their core functions to perform tasks that they are not trained or expected to perform.
22. The importance to the provision of education of non-teaching staff at public schools is recognised in the Amended National Norms and Standards for School Funding (2006) published by the Minister of Education.7 They apply, according to s 7, ‘uniformly in all provinces, and are intended to prevail in terms of Section 146(2) of the Constitution’. Sections 29 and 30 are of signi cance. They state:
‘29 . The allocation of non-teaching staff to schools, including administrative and support staff , is extremely uneven. The provision of such personnel has been severely lacking in historically disadvantaged and small schools. Inequalities in the provision of such staff members is almost certainly associated with major inefficiencies in schools which serve poor communities.
30. The Minister of Education is responsible for determining norms for the provision of non- educator personnel, including non-teaching personnel at school level.’
23. This brings me to the central issue in this case, namely whether the respondents are under a statutory obligation to declare a post establishment for non-teaching staff at public schools in the province for 2013 and, if so, to fill the posts so declared. Mr Budlender, who appeared together with Mr Brickhill for the applicants, argued that the statutory obligation resting on the respondents is to be gleaned from the applicable legislative scheme as a whole. Mr Mbenenge, who appeared with Mr Benning eld for the MEC and his head of department, and Ms Collett took the view that while teacher post establishments must be declared in terms of the Employment of Educators Act 76 of 1998, no such obligation rested on any of the respondents to declare a post establishment for non-teaching staff.
24. The norms and standards that I referred to above stipulate what are termed policy targets in respect of personnel. Section 20 states that the national department’s personnel policy for schools embodies the following principles:
‘(a) schools must be supplied with an adequate number of educator and non-educator personnel;
(b) such staff members must be equitably distributed according to the pedagogical requirements of the schools; and
(c) the cost of personnel establishments must also be sustainable within provincial budgets.’
25. Section 21 sets a policy target which is based on local and international evidence that ‘personnel: non-personnel spending in ordinary public schools should be in the order of 80:20’ and s 23 provides that within the total personnel allocation in provincial departments ‘teaching personnel costs should be targeted at 85%, to allow for the appointment and proper distribution of administrative and support staff ’.
26. Section 5(2) of the Employment of Educators Act provides that the head of a provincial department determines the educator establishment of public schools in a province but it makes no mention of non-teaching staff. Their situation is governed by the Public Service Act, 1994 (Proclamation 103 of 3 June 1994) and it is to this statute that I now turn.
27. Section 1 contains definitions of three key terms. ‘Establishment’ is de ned as ‘the posts which have been created for the normal and regular requirements of a department’. A department is de ned to include a provincial department. A post means ‘a post on the establishment for which financial provision exists’.8 Section 8(1)(a) provides that the public service consists of persons who are employed ‘in posts on the establishment of departments’ and s 8(1)(b) includes posts ‘additional to the establishment of departments’.
28. Section 3(7) provides:
‘An executive authority has all those powers and duties necessary for –
(a) the internal organisation of the department concerned, including its organisational structure and establishment, the transfer of functions within that department, human resources planning, the creation and abolition of posts and provision for the employment of persons additional to the fixed establishment;
(b) the recruitment, appointment, performance management, transfer, dismissal and other career incidents of employees of that department, including any other matter which relates to such employees in their individual capacities, and such powers and duties shall be exercised or performed by the executive authority in accordance with this Act.’
The term ‘executive authority’ is defined, in relation to a provincial department, to be ‘the member of the Executive Council responsible for such portfolio’.
29. Two sections of the South African Schools Act 84 of 1996 clearly contemplate that both establishments for teaching and non-teaching staff must be determined. First, ss 20(1)(i) and (j) empower governing bodies to recommend to the head of the provincial department ‘the appointment of educators at the school, subject to the Employment of Educators Act’ and ‘the appointment of non-educator staff at the school, subject to the Public Service Act’. Secondly, ss 20(4) and (5) empower governing bodies to create posts additional to the establishment for both teachers and non-teaching staff. They state:
‘(4) Subject to this Act, the Labour Relations Act, 1995 (Act 66 of 1995), and any other applicable law, a public school may establish posts for educators and employ educators additional to the establishment determined by the Member of the Executive Council in terms of section 3(1) of the Educators’ Employment Act, 1994.
(5) Subject to this Act, the Labour Relations Act, 1995 (Act 66 of 1995), and any other applicable law, a public school may establish posts for non-educators and employ non- educator staff additional to the establishment determined in terms of the Public Service Act, 1994 (Proclamation 103 of 1994).’
30. Not surprisingly, the two sets of post establishments are linked. This is clear from the norms and standards and also from regulation 1(c)(ii)(ee) of the regulations made in terms of the Employment of Educators Act.9 It states:
‘In determining the post establishment of a provincial department of education, the Member of the Executive Council must –
(ii) take into account
(ee) the fact that the division between expenditure on educator and non-educator personnel costs in the budget should be educationally, administratively and financially justifiable and in accordance with national policy that may exist in this regard.’
31. Finally, in order for governing bodies to be able to budget for, and fill, posts additional to the establishments for both teachers and non- teaching staff, they of necessity need to know first what both of those establishments are. In other words, they cannot exercise their powers in terms of ss 20(4) and (5) properly and rationally without knowing how many teachers and non- teaching staff are provided for by the provincial department. This point was made in relation to s 20(4) by Eksteen J in Federation of Governing Bodies of South African Schools & others v MEC for the Department of Basic Education & another10 but his observations apply equally to s 20(5). He stated:11
‘21. The structure of the Schools Act accordingly provides for the Minister to lay down norms and standards in respect of various issues relating to public schools, including the number of teachers and class sizes (section 5A(2)(b)(i)), the appointment of teachers by the governing bodies of public schools (section 20(4)) and the funding of public schools (section 35). In addition to the obligation of the State, as set out in the Act, the governing bodies of public schools have an obligation to take all reasonable measures within its means to supplement the resources supplied by the State in order to improve the qualify of education provided by the school to all learners at the school. The means by which it is empowered to give effect to this obligation placed upon it is by the appointment of additional educators pursuant to the provisions of section 20(4) of the Act. The decision of a governing body to employ educators may have a huge impact on school fees. For this reason section 20(9) of the Schools Act requires of a governing body, when presenting an annual budget to provide sufficient details of any posts envisaged in terms of section 20(4), including the estimated costs relating to the employment of staff in such posts and the manner in which it is proposed that such costs will be met.
22. The budget must be prepared annually. According to prescriptions determined by the MEC it must show estimated income and expenditure at the school for the following financial year (see section 38(1)). Before such a budget is approved by the governing body it must be presented to a general meeting of parents convened [on] at least 30 days notice for consideration and approval of a majority of parents present and voting (see section 38(2)).
23. Clearly the need and desirability for the appointment of additional educators over and above the establishment determined by the MEC can only be considered once the establishment determined by the MEC is known. Once this is conveyed to each public school it is in a position to commence with the planning of its budgets, the raising of funds, the advertising of educator posts by the governing body, interviewing of candidates and the recommendations for the appointments to the HOD as envisaged in section 20(1)(i) of the Schools Act.
24. It is readily apparent that the structure of the system provided by the legislature for the organisation, governance and funding of schools in the Schools Act cannot be achieved unless the head of the department complies with his obligations in terms of section 58C(6) by advising each school of a maximum and minimum capacity in relation to the availability of, inter alia, educators, by no later than 30 September 2007. It is signi cant that the date of 30 September is not set as a target date in some policy document or regulation, rather it is stipulated by statute as the latest date by which the HOD must complete that function. If he does not do so the system breaks down.’
32. In summary, the Public Service Act empowers the MEC to determine the establishment for non-teaching staff at public schools in the province; the norms and standards that apply to the provincial department postulate an adequate number of both teaching and non-teaching staff to be employed at each school and a correlation between the teaching and non-teaching establishments; and the South African Schools Act requires both teacher and non-teacher establishments to be known by governing bodies before their budgets can be approved and to allow them to determine how many additional posts are needed at their schools. The only interpretation of the legislation that is consistent with the obligation on the respondents to respect, protect, promote and ful l the fundamental right to basic education12 is that the MEC is empowered to and obliged to determine the establishment for both teaching staff and non-teaching staff at public schools in the province. As, in terms of s 1 of the Public Service Act, a post means a post on the establishment for which financial provision exists, any posts which have been determined can, and must, be filled.
33. As the posts that are part of the establishment have been budgeted for, there can logically be no moratorium on filling them. That can only arise, assuming that some or other functionary has the power to impose a moratorium, if a fiscal crisis befell the provincial department at a later stage. In any event, the imposition of a moratorium in such circumstances would, assuming it could otherwise validly be imposed, place the respondents in breach of their constitutional obligations to respect, protect, promote and fulfil the fundamental right to basic education, in terms of s 7(2) of the Constitution.
34. My conclusion is consequently that the respondents are obliged to declare post establishments for both teaching staff and non- teaching staff for 2013 for public schools in the province and that they are required to ll those posts which, after all, they would have budgeted to do. The applicants are accordingly entitled to the orders that they sought. I have, with the knowledge and consent of the parties, changed certain of the implementation dates that had been agreed upon in the order to make provision for the delay occasioned by reserving judgment.
35. The following order is issued:
1. The first to fourth respondents are required forthwith to implement the 2012 educator establishment of the Department of Basic Education, Eastern Cape Province, declared by the third respondent in terms of section 5(1) (b) of the Employment of Educators Act 76 of 1998 (the EEA) (the 2012 provincial educator establishment) and the educator establishment of public schools in the Eastern Cape declared by the fourth respondent in terms of section 5(2) of the EEA (the 2012 educator establishment for public schools).
2. The first to fourth respondents are directed to implement the 2012 provincial educator establishment and the 2012 educator establishment for public schools, in full, by appointing educators to all vacant substantive posts declared in the 2012 educator establishment for public schools on a permanent basis by 2 November 2012.
3. The first and fourth respondents are directed to appoint educators on a temporary basis pending the permanent appointment of all educators against all vacant substantive posts on the 2012 educator establishment for public schools by 2 September 2012.
4. The first and fourth respondents are directed to pay the salaries of all educators whose appointment on a temporary basis has been approved by the Department of Basic Education, Eastern Cape, which the respondents have failed to pay, by 17 August 2012.
5. Where an educator has
5.1. been duly identified by the School Gov- erning Body concerned, in accordance with the Memorandum of 10 November 2011 or the Circular of 19 April 2012, to ll a vacant substantive post recognised in the 2012 post establishment for public schools; and
5.2. been performing the functions of that post,
such educator will be deemed to have been appointed as a temporary educator in terms of the EEA pending the permanent appointment of an educator against that vacant substantive post on the 2012 educator establishment for public schools.
6. The first and fourth respondents are directed to pay the salaries of the educators referred to in paragraph 5 and/or reimburse the school concerned from the date on which the educators assumed duty. In order for such payments to be made:
6.1. by 17 August 2012, the third and fourth respondents will provide the applicants’ attorneys with contact details for each district o ce in the province; and
6.2. by 3 October 2012, the relevant schools will provide the relevant district o ce with the following details:
6.2.1. the documents demonstrating the approval of the School Governing Body;
6.2.2. the name of the educator;
6.2.3. the post in respect of which the educator assumed duty;
6.2.4. the date and terms on which such educator assumed duty;
6.2.5. proof of attendance and/or rendering of service by the educator concerned; and
6.2.6. proof of payment by the school, if applicable.
6.3. The payments will be made by the first to fourth respondents within one month of the submission of the information referred to in paragraph 6.2 above.
7. The first and third respondents are directed to declare the 2013 educator establishment of the Department of Basic Education, Eastern Cape, in terms of section 5(1)(b) of the EEA.
8. The first and fourth respondents are directed to declare the 2013 establishments for public schools in the Eastern Cape in terms of section 5(2) of the EEA and the Public Service Act, Proc 103 of 1994 (as applicable) by not later than 30 September 2012, such establishments to include posts in respect of educators and non- educator personnel.
9. The first to fourth respondents shall ensure that the 2013 educator establishments for public schools declared in terms of paragraph 8 above consist of posts that are fully funded, and shall ensure that educators and non- educator personnel are appointed to, and assume, these posts, by no later than 31 January 2013.
10. The first respondent, in consultation with the second to fourth respondents, shall make a report available for inspection at each district o ce and to the parties on 3 September 2012, 4 December 2012 and 31 January 2013, such reports to contain at least details of:
10.1. the steps taken to appoint educators on a permanent or temporary basis to ll vacant posts against the 2012 educator establishment for public schools in terms of paragraphs 2 and 3 above;
10.2. the steps which have been taken to transfer and/or ensure the movement of teachers who are additional to the educator establishment of their schools in terms of the 2012 educator establishment for public schools; and
10.3. the steps taken to ensure payment of educators in terms of paragraphs 4 and 6 above;
10.4. the steps taken to declare the 2013 establishments in terms of paragraphs 7 to 8 above, and the steps taken to implement them.
11. Any party may subsequently set the matter down for hearing on reasonable notice on the papers already led of record, duly supplemented as appropriate.
12. The respondents are ordered, jointly and severally, to pay the applicants’ costs, including the costs of two counsel.
13. The respondents are ordered, jointly and severally, to pay the disbursements of the amicus curiae.
JUDGE OF THE HIGH COURT
S Budlender and J Brickhill
Legal Resources Centre, Grahamstown First and second respondents: S Collett
NN Dullabh and Co, Grahamstown
Third and fourth respondents: SM Mbenenge SC and PG Benningfield
NN Dullabh and Co, Grahamstown
Amicus curiae: M Chaskalson SC and A Hassim
Legal Resources Centre, Grahamstown
In the High Court of South Africa (Eastern Cape High Court: Grahamstown)
In the matter between:
The Centre for Child Law
The Governing Body Oatlands Preparatory School
The Governing Body St Mary’s RC School
The Governing Body Mary Waters High School
Bethelsdorp SGB Unit
The Governing Body Alphendale High School
The Minster of Basic Education
The Director-General, Department of Basic Education
The Member of the Executive Council, Department of Basic Education Eastern Cape Province
The Head of Department of Basic Education Eastern Cape Province
Notice of Motion
The Applicants launched an application on 12 July 2012 in the Eastern Cape High Court, Grahamstown, for an order in the following terms:
1. Directing that this matter be heard as a matter of urgency and that the Applicants’ non-compliance with the rules of court relating to compliance with time limits and the service of documents be condoned on account of such urgency;
2. Declaring that the First to Fourth Respondents are required forthwith to implement the 2012 educator establishment of the Department of Basic Education, Eastern Cape Province, declared by the Third Respondent in terms of section 5(1) (b) of the Employment of Educators Act 76 of 1998 (“the EEA”) (“the 2012 provincial educator establishment”) and the educator establishment of public schools in the Eastern Cape declared by the Fourth Respondent in terms of section 5(2) of the EEA (“the 2012 educator establishment for public schools”);
3. Directing the First to Fourth Respondents to implement the 2012 provincial educator establishment and the 2012 educator establishment for public schools, in full, by appointing educators to all vacant substantive posts declared in the 2012 educator establishment for public schools on a permanent basis within three (3) months of the date of the order;
4. Directing the First and/or Fourth Respondents to appoint educators on a temporary basis pending the permanent appointment of all educators against all vacant substantive posts on the 2012 educator establishment for public schools within one (1) month of the date of the order;
5. Directing the First and/or Fourth Respondents to pay the salaries of all educators whose appointment on a temporary basis has been approved by the Department of Basic Education, Eastern Cape, which the Respondents have failed to pay, within ten days of the date of the order;
6. Declaring that educators who have been appointed on a temporary basis against vacant substantive posts recognised in the 2012 post establishment for public schools by the Governing Bodies of public schools in the Eastern Cape Province as at the date of the order are deemed to be employed by the Fourth Respondent;
7. Directing the First and/or Fourth Respondents to pay the salaries of the educators referred to in paragraph 6 from the date on which they assumed duty;
8. Directing the First and/or Third Respondents to declare the 2013 educator establishment of the Department of Basic Education, Eastern Cape, in terms of section 5(1)(b) of the EEA by not later than 30 August 2012;
9. Directing the First and/or Fourth Respondents to declare the 2013 educator establishment for public schools in the Eastern Cape Province in terms of section 5(2) of the EEA by not later than 30 September 2012, such establishment to include posts in respect of both teaching and non- teaching staff at public schools;
10. Directing the First to Fourth Respondents to ensure that the 2013 educator establishment for public schools declared in terms of paragraph 9 above consists of posts that are fully funded, and to ensure that educators and non-teaching staff are appointed to, and assume, these posts, by no later than 31 January 2013;
11. Directing the First Respondent to report to the Court and to make the report available for inspection at each district o ce and to the parties within one month of the order and every three months thereafter until the end of March 2013, such report to contain at least details of:
11.1 The steps taken to appoint educators on a permanent or temporary basis to fill vacant posts against the 2012 educator establishment for public schools in terms of paragraphs 3 and 4 above;
11.2 The steps which have been taken to transfer and/or ensure the movement of teachers who are additional to the educator establishment of their schools in terms of the 2012 educator establishment for public schools;
11.3 The steps taken to ensure payment of educators in terms of paragraphs 5 and 7 above; and
11.4 The steps taken to declare and implement the 2013 educator establishments in terms of paragraphs 8 to 10 above.
12. Permitting any party subsequently to set the matter down for hearing on reasonable notice on these papers, duly supplemented as appropriate.
13. The Respondents are ordered, jointly and severally, to pay the Applicants’ costs.
Founding Affidavit – Edited
Factual Background to the Application
14. The situation in the Eastern Cape in 1994 was complex. The new EC Department inherited the three tricameral education departments. In addition the Eastern Cape inherited the education departments of the former Ciskei and the former Transkei. The pupil to teacher ratio in the Ciskei in 1993 was 34:1, and in the Transkei the ratio was 51:2.
15. The problems that face the EC Department are numerous and complex. Among them is the development of a single education department which incorporates highly unequal components previously constructed on a racial basis, and in particular the departments in the very poor and underdeveloped former homelands.
The Current Crisis in the Eastern Cape and the National Intervention in Terms of Section 100 of the Constitution
16. For several years now, the EC Department has been beset by a series of problems which have led to its inability to deliver basic services, including ensuring teaching and learning at schools. As a consequence, on 24 February 2011, the Minister issued a statement titled “Statement of Intent on the Remediation of the Present Challenges in Basic Education in the Eastern Cape Province”. A copy of this statement is annexed hereto marked Annexure 3. It outlines the crisis which has developed in the EC Department. The statement highlights specific areas of concern, one of which was the “effective and credible allocation of educators to schools” (paragraph 4, page 3 of the statement).
17. In the Statement of Intent, the Minister observed that the problems were “extremely serious” and that the consequences were that the learners were “being denied their full rights to quality basic education”. The Statement also quoted a statement made by the President on 17 February 2011 during the debate on the state of the nation Address, where he said, “as of now, the triple T call to priorities teachers, textbooks and time, cannot be implemented in the Eastern Cape”. The present application is concerned with the first ‘T’ in the set of three key priorities – teachers.
18. The Statement of Intent identified four focal areas for proposed national intervention, one of which was the implementation of post provisioning and addressing the “present problem around the employment of temporary teachers” (paragraph 2.b, page 4 of the statement).
19. On 2 March 2011, Cabinet directed the Minister carry out an intervention in terms of section 100 of the Constitution to address the challenges in education service delivery in the Eastern Cape Province. There were delays and problems in implementing the section 100(1)(b) intervention.
20. In February 2012, Save our Schools and Community and the Catholic Institute for Education, represented by the Legal Resources Centre (LRC), Grahamstown, launched an urgent application to compel the Respondents to take steps to implement the section 100(1) (b) intervention in full, which would oblige the national executive to clarify what obligations it has assumed, to exercise those obligations, and to account for its exercise of those obligations (“the Save our Schools case”). This application resulted in a settlement agreement being made an order of court on 20 March 2012. In terms of this order:
20.1 The national executive is to “continue to implement the section 100(1)(b) intervention … in co-operation with the provincial government”
20.2 The applicant is required to be provided with copies of all delegations made by the Minister in relation to the intervention; and
20.3 The national executive is required to report quarterly to the National Council of Provinces, and to provide the applicant with such reports.
21. Notwithstanding this order, the problems with post provisioning in the Eastern Cape persist. It also remains unclear whether the implementation failures arise at national or provincial level, or both.
Teacher Allocation: Post Provisioning in the Eastern Cape
22. At the heart of the inequality and failures in education in the Eastern Cape is the failure to implement post provisioning, not merely in 2012 but for over a decade.
23. The affidavit led by Jonathan Godden in the Save our Schools case highlights the importance of the implementation of post provisioning and the problems that have beset the Eastern Cape Province in this regard.
24. In 1994, the existing education system reflected a highly inequitable allocation of posts. The democratic government therefore embarked on the task of ensuring equality in educational funding and provisioning. A critical part of this process was post provisioning. The history and context of post provisioning are set out in more detail in the affidavit of Mr Godden.
25. In summary, a fundamental element of what was needed was the transformation of the education system by redistributing funds and resources in a more equitable manner. This required assessing the number of teachers required and redistributing teachers from over- staffed to under-staffed schools in accordance with an equitable formula. This formula was calculated on the actual number of children enrolled in school and the number of children of school going age in the province. This process is known as ‘post provisioning’.
26. The ‘right-sizing’ or rationalisation of the education sector and post provisioning are necessary to establish a more equitable and effective educational system. One of the results of the failure to implement post provisioning and redistribution of teaching posts in the Eastern Cape has been the disastrous continuation of inequality, with some schools being over-staffed while others are under-staffed. This inequality has a direct impact on the educational outcomes of learners in the province as a whole, and particularly in the poorest schools.
The impact of the failure to implement post provisioning on education service delivery in the Eastern Cape
27. The Province’s inability to comply with policies, norms and standards relating to post provisioning has resulted in the over-expenditure of the budget for payment of employees and placed an enormous strain on the overall budget for education in the Province. It has impacted on the Province’s overall budget and spending trends.
28. With more than three-quarters of the Province’s annual budget already allocated to paying teachers – of whom 5,000 have been identified as being surplus in the post establishment – the provincial education authorities have had to introduce dramatic cost-cutting measures.
29. If the post-provisioning method was implemented, these 5,000 teachers in excess would have been moved to under-staffed schools. However, because of union intervention and a lack of political will, the teachers in excess have not moved. This forced the EC Department to hire temporary teachers at understa ed schools to ll the void. This measure is not financially sustainable because it forces the EC Department to pay two teachers to perform one job, also known as ‘double parking’.
30. In 2011, the cost-cutting measures included terminating the services of more than 4,000 temporary teachers lling vacancies at critically under-staffed schools. The termination of temporary teachers without the redeployment
of teachers through post provisioning has its greatest impact on poorer schools, which are not able to supplement their teaching staff with additional posts created by the SGB through the use of school fees. The poorer schools already suffer the burden of a shortage of resources. They will in addition suffer the burden of a higher learner-teacher ratio unless the distribution of teachers takes place on an equitable basis.
31. The failure to implement post provisioning has had a dramatic effect on the quality of education. When the EC Department terminates temporary teachers’ contracts or fails to appoint and pay temporary teachers, it creates serious risk to teaching and learning in the poorest schools, especially in critical subjects like accounting, maths and sciences. Meanwhile, teachers in excess at over-staffed schools may have few responsibilities.
32. The ‘double parking’ of teachers contributes to the EC Department’s high personnel spending. It diverts funding from away from other critical items such as scholar transport; school nutrition; textbooks and stationery; and infrastructure development.
33. Funding cuts forced the EC Department to suspend its school transportation program in the first quarter of 2011. As a result, over one hundred thousand learners across the Eastern Cape, primarily in rural areas, had to commute to school on foot. This cuts down on learners’ study time; causes learners to arrive at school tired; and it raises safety concerns, particularly for girls, because of the potential dangers (such as crime, abuse, and accidents) that can occur while travelling long distances to and from school.
34. The school nutrition programme has also been negatively impacted by the EC Department over-expenditure on personnel. This programme, which was invaluable to many disadvantaged students, fed over 1.6 million learners at least one meal per day.
35. In a document entitled “Eastern Cape Department: section 100(1)(b): Detailed Progress Report as at 27 January 2012 (week 19)” the severity of the problem is acknowledged (at page 28. Under “Urgent Service Delivery Areas – Provisioning of school furniture (5) by 31 December 2011” the report states that a comprehensive audit of furniture needs was conducted in April/May 2011 and that the total cost of furniture needed for learners in the province is R274,2 million. The original amount budgeted in the provincial budget for furniture was R58 million but this was reduced to R5 million during the “Adjustment Estimate”. A paltry 600 desks and 600 chairs had been delivered to schools by the end of January 2012. According to the audit, there are 1295 schools requiring furniture in the Eastern Cape (Cluster A- 202; Cluster B- 731; Cluster C-362) and approximately 605,163 learners are affected at the schools.
36. Although the EC Department receives funds earmarked for school infrastructure from the National Treasury, its budget shortfall prevents it from taking the necessary steps to make use of these funds to implement improvements. Consequently, this funding is returned unused. The EC Department has the largest backlog in the country for provision of infrastructure to schools. Cutting infrastructure funding will only worsen the situation and, once again, prevent students from accessing a quality and equitable education.
The failure to implement the post establishment in 2010 and 2011
37. For the year 2010, the MEC determined the post establishment at 69 390 educators for the Province. However this post establishment was not implemented in full.
38. In respect of 2011, however, the MEC failed to meet the deadline of 30 September 2010 for determining the 2011 post establishment. Eventually he proclaimed that only 64 252 would be distributed. Subsequently, the High Court set aside the 2011 post establishment.
39. A further consequence of the failure to implement the post establishment has been that the Department failed to ll vacant posts, thus allowing vacancies to escalate to dangerous proportions. Vacancies are created by processes of natural attrition. This involves educators retiring, dying, becoming promoted and resigning. The Department is obliged to fill those posts as and when they fall vacant. This is a process involving advertising the posts, and then having School Governing Bodies interview candidates and make recommendations to the Second Respondent who must then make appointments.
40. When vacancies are not published regularly as provided for by the Personnel Administration Measures, self-evidently, the posts will not be filled. If this process is not pursued on an ongoing basis, the vacancies escalate to unmanageable levels.
41. In addition to the vacant posts occupied by the temporary educators, there are many other posts also of a substantive nature which have still not been filled by the Department. It has failed to discharge its statutory duties by publishing the posts as vacant. When the Department fails to do this, the entire process grinds to a halt. Learners suffer because there are no educators in the classrooms. The schools suffer because their Governing Bodies cannot provide the quality education which the Schools Act requires them to provide. All the learners and schools are in the hands of the Respondents in this regard who, by failing in their administrative and executive duties, have created a crisis in the Province where many schools now face closure and the prospect of sending children home because there are no educators to teach them. Financial hardship follows to the extent that many schools have had to devote precious financial resources to the payment of those educators, in effect, subsidising the Department in its failures. They have done so facing the emergency visited upon them by the Respondents and without having budgeted for such an eventuality.
42. There is another category of vacancies which are created in consequence of these failures by the Respondents. This is where educators occupying substantive posts on the post establishments of Public Schools have to temporarily vacate their post on account of incapacity, illness, maternity leave or for any other lawful reason. The Department has traditionally filled those posts with substitute educators so as to ensure continuity and that learners are not left without education.
43. For unknown reasons many vacant posts have not had substitute teachers appointed. Thus, in the example of Alphendale in East London, two teachers who have been sick for more than five years are still on the payroll and have not been replaced. This means that the school is funding two substitute teachers in these posts. Schools resources however are not inexhaustible and many schools have now reached the stage where they can no longer subsidise the State. They will not be able to pay substitute educators or permanent educators or temporary educators for that matter. They are in danger of losing those educators and the posts will then remain vacant.
44. The teacher redeployment process has never been completed in the EC Department. All attempts have failed administratively and politically. Even where o cials have been deployed by the national Department of Education to assist in this process, their e orts have not achieved equitable distribution of posts across the province. This has meant that where there is an excess of posts in one school, there have been no procedures by which teachers ‘in excess’ might be redeployed to schools where there are vacant posts.
45. In the absence of a teacher redeployment mechanism, it has been necessary to employ teachers on a temporary basis in those schools where posts are vacant. The continued employment of temporary teachers, in addition to teachers who might be in excess, is a massive additional burden on the public fiscus and is not sustainable.
46. In addition there has been a “moratorium” on the appointment of non teaching staff at school. Many schools in the Eastern Cape function entirely without any administrators, clerks, secretaries or ground staff. The situation at Alphendale and Mary Waters is particularly acute. SGB’s have become accustomed to funding these posts but to carry this burden in addition to the temporary teachers is unsustainable.
The 2012 Post Establishment and Its Implementation
62. On 27 September 2011 the Executive Council approved the 2012 post declaration for the Eastern Cape and approved that it be fully funded.
63. According to a statement made by the former HoD Mr Mannya in April 2012 there are 7 947 educators who are currently additional to the post establishment of their schools. These educators should have moved in accordance with the Collective Agreement described below.
64. The failure to implement post provisioning has had a dramatic effect on quality of education. When the EC Department terminates temporary teachers’ contracts or fails to appoint and remunerate temporary teachers to fill vacant posts, it creates serious threats to teaching and learning in the poorest schools, especially in critical subjects like accounting, maths and sciences. Meanwhile, there are teachers in excess at over-staffed schools.
65. A key financial implication of post provisioning is that temporary teachers will be needed where posts are vacant at the commencement of the 2012 school year, and steps should have been be taken to ensure that they are appointed. This means that, in the absence of post provisioning, the current pattern of over-expenditure on personnel will be repeated in the Eastern Cape in the 2012/13 budget year.
66. If the steps to achieve equitable teacher distribution are undertaken timeously, it should be possible to ensure that personnel expenditure in the 2013/14 financial year will be brought in line with the provincial personnel budget, as this will have been taken into account in the educator post provisioning scale implemented.
The Affidavit Then Described the Situation at all the Individual Client Schools – Only Two Examples
Mary Waters High School
67. Mary Waters is a Quintile 3, non-fee paying school. It has 1 087 learners and is a dual medium school. The o cial 2012 post establishment for Mary Waters consists of 38 educators. The post establishment consists of 1 principal, 2 deputy principals, 5 HODs, and 30 post level 1 posts. EC Department funds only 27 permanent teachers. Of the eleven unfilled posts, the EC Department has appointed four temporary teachers who they only started paying in 2012. One HOD position has been vacant for over 8 years. Further, six post level 1 positions remain vacant. The SGB was able to a ord to ll one of these positions for only one term. The failure to implement the full post establishment in 2011 and 2012 has exhausted all of the SGB’s funds. As a consequence, many classes remain without a teacher, which has caused hundreds of learners to go without instruction in certain subjects.
Alphendale High School
68. Alphendale High School has 1 068 learners. Its 2012 post establishment consists of 44 educators. Alphendale quali es for 1 principal, 2 deputy principals, 6 HODs, and 35 post level 1 posts. The EC Department has appointed and paid for only 38 educators. The HOD posts remain vacant and the SGB is funding four temporary post level 1 positions. In addition, two teachers have been on temporary disability leave for the last 7 to 8 years. One teacher, Mr. Saunders, is listed on the post establishment but has never taught at Alphendale. The EC Department does not provide any funds for administrative positions and only funds one cleaner and one security guard. The SGB pays for four cleaners and one administrative post.
69. Alphendale has now exhausted all its funds raised from fees and fundraising, due to the ongoing failure to implement the 2012 post establishment. The school is in danger of facing bankruptcy in the next two months. In addition, to make matters worse, the school has not received any funding from EC Department this year and cannot a ord to pay its utility bills.
Attempts at Resolving the Issues
70. The efforts of the Applicants and their legal representatives to resolve the problems a icting the individual schools and other schools in the Eastern Cape without the need to resort to litigation were detailed in this affidavit. They are excluded for the purpose of this application.
71. The HoD has a statutory obligation to determine the post establishment of each individual school and to convey such information to such school by no later than 30 September of the preceding year.
72. In line with the aforementioned provisions the MEC declared an educator post establishment on 27 September 2011 and the Head of Department allocated these posts to schools throughout the Eastern Cape. Despite this declaration and allocation of educator posts, the Respondents have failed to implement the 2012 post establishment in full. There appear to be a variety of reasons for the First to Fourth Respondents failure to implement the 2012 post establishment which I will deal with below.
73. Any appointment, promotion or transfer to any post on the educator establishment of a public school may be made only on the recommendation of the SGB of the public school and, if there are educators in the department who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the HoD, who are in excess and suitable for the post concerned. (Section 6(3)(a).)
Collective Agreement 2 of 2003
74. The movement of additional educators to schools where they are mostly needed in terms of operational requirements is regulated through the Education Labour Relations Council [ELRC] Collective Agreement 2 of 2003.
75. In terms of this Collective Agreement, the identification of additional educators takes place at school level and the curriculum needs of a school are critical in such identification. The identification of additional educators, therefore, cannot be a desk top exercise nor can it be done outside the school. The Collective Agreement (which regulates the transfer of educators for operational reasons, remains the agreed tool to manage the incidence of any educators who become additional to the post establishment of schools. A copy of this collective agreement is attached marked Annexure 24.
76. Educators can only cater for so many learners within a classroom context. The higher the learner number beyond what is reasonable and above the ‘critical mass’, the less effective the education becomes. Classes and learners are also curriculum driven and accordingly a mathematics educator would not be able for example, to absorb Life Sciences learners into his class.
77. All schools and learners affected have a clear right to have their statutory rights enforced.
78. With the passage of time, the urgency in fact escalates because the longer learners remain without educators in the classroom, the greater the prejudice because the impact of an interruption or delay in education has a rolling effect during the course of a learner’s education. This will seriously affect the learners’ rights because to the extent that they are not able to pass their examinations at the end of the year many of them would fail and have to repeat the same grade in 2012. This constitutes irreparable harm.
79. The Respondents have failed to take the necessary steps to discharge their statutory duties or even to respond meaningfully or at all to the correspondence addressed to them. They have therefore left the Applicants with no alternative but to proceed. If this Honourable Court does not grant the relief sought herein, all learners affected will be deprived of their basic education.
80. If there is to be a consideration of the balance of convenience in the granting of urgent interim relief, it would be my submission that this would also favour the Applicants. This is because all the Applicants require is the discharge of statutory and constitutional duties in reference to the provision of educators to serve the constitutional imperatives set out in sections 28 and 29 of the Constitution. The imminent closure of classes and even schools looms ominously.
81. The prejudice and harm extends also to the schools involved and to the entire staff and the professional management and governance of the schools. SGBs will not be in a position to discharge their own statutory duties in terms of the Schools Act, which obliges them to provide quality education. They remain in the hands of the EC Department in the appointment of educators.
82. In all the circumstances I submit that an order in terms of the Notice of Motion attached hereto is appropriate.
- See governing body of the juma musjid primary school & others essay no & others (centre for child law & another as amici curiae) 2011 (8) bclr 761 (cc), para 37.
- Section 38 of the Constitution reads:
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are-
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.’
- Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & others 2010 (6) SA 182 (CC), para 44
- Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC).
- Para 263.
- Para 265.
- Published in Government Notice 869 in Government Gazette 29179 of 31 August 2006, and made in terms of s 39(7) of the South African Schools Act 84 of 1996, and amended from time to time thereafter.
- Emphasis added.
- Regulations for the Creation of Educator Posts in a Provincial Department of Education and the Distribution of Such Posts to the Educational Institutions of Such a Department, Government Notice R1676, Government Gazette 19627 of 18 December 1998, as amended by Government Notice R1451, Government Gazette 24077 of 15 November 2002.
- Federation of Governing Bodies of South African Schools & others v MEC for the Department of Basic Education & another ECB 2 March 2011 (case no.60/11) unreported.
- Paras 21-24.
- Constitution, s 7(2).