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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 3844/2013

DATE: 26/01/2015

In the matter between

LINKSIDE & OTHERS...................................................................................................APPLICANTS

and

MINISTER OF BASIC EDUCATION...................................................................1^ST RESPONDENT

THE DIRECTOR-GENERAL,

DEPARTMENT OF BASIC EDUCATION..........................................................2^ND RESPONDENT

MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF BASIC EDUCATION..........................................................3^RD RESPONDENT

THE HEAD OF DEPARTMENT

DEPARTMENT OF BASIC EDUCATION,

EASTERN CAPE PROVINCE..............................................................................4^TH RESPONDENT

SOUTH AFRICAN DEMOCRATIC TEACHERS

UNION.....................................................................................................................5^TH RESPONDENT

NATIONAL PROFESSIONAL TEACHERS

ORGANISATION OF SOUTH AFRICA.............................................................6^TH RESPONDENT

SUID-AFRIKAANSE ONDERWYSERS UNIE..................................................7^TH RESPONDENT

REASONS FOR ORDER

ROBERSON J:-

[1] On 17 December 2014 I made the following order, which was substantially in accordance with the relief sought by the applicants:

“[1] In respect of the specific amounts paid by the class member schools to educators occupying substantive posts on the provincial educator establishment set out in Annexure “A” to the notice of motion.

[1.1] It is declared that each of the amounts constitutes a debt against the state in terms of the State Liability Act 20 of 1957 (“State Liability Act”);

[1.2] The fourth respondent is directed to make payment of each of the amounts in question to each of the schools in question;

[1.3] To comply with prayer 1.2 above,

[1.3.1] The fourth respondent is directed within 20 days of the court order to appoint a firm of registered chartered accountants to serve as claims administrators (“the Claims Administrators”) to distribute the amounts payable to individual schools as members of the class and advise the court of their identity,

[1.3.2] The fourth respondent is directed to ensure that the Eastern Cape Department of Education pays the amount of R81,445,339.99 to the Claims Administrators appointed in terms of paragraph 1.3.1 above within 60 days of this order.

[1.3.3] The Claims Administrators, acting in consultation with the legal representatives of the class (the Legal Resources Centre), shall:

[1.3.3.1] within 60 days of the appointment of the Claims Administrators, verify each class member’s entitlement to the amount claimed by confirming the existence of a vacant substantive post for the year in question, and proof of the appointment and payment of an educator to that post by members of the class;

[1.3.3.2] within 30 days of verifying the entitlement of each class member, disburse payments to the class in accordance with their claims as set out in Annexure “A” to the notice of motion;

[1.3.3.3] thereafter, within 30 days, return any balance of funds that are not required to be distributed to class members to the Eastern Cape Department of Education;

[1.3.3.4] thereafter, deliver a report to the court setting out all the steps taken by the Claims Administrators to disburse payments and to comply with this order.

[1.4] If the first to fourth respondents fail to make payment to the Claims Administrators, the applicant schools may secure satisfaction of the amounts due in accordance with the procedures set out in terms of section 3 of the State Liability Act.

[2] It is declared that the educators listed in Annexure “B” to the notice of motion who are suitably qualified are deemed to be appointed as permanent educators at the applicant schools in terms of section 6 of the Employment of Educators Act 76 of 1998, only insofar as these appointments will not exceed the school’s 2015 educator post establishment, with effect from 1 January 2015.

[2.1] The fourth respondent is directed to issue these educators with letters of permanent employment, specifying their remuneration, in terms of the Employment of Educators Act 76 of 1998, within 30 days of the date of this order.

[2.2] The Superintendent General is directed to report to this court within 60 days of the court order and thereafter on a quarterly basis until this order has been complied with in full, such report to include at least:

[2.2.1] details of the steps taken to comply with paragraph 2 of this order;

[2.2.2] a list of all educators who have been provided with letters of appointment;

[2.2.3] copies of the letters of appointment; and

[2.2.4] confirmation that they have been paid at the levels specified in the letters of appointment.

[3] In respect of all substantive vacancies after the appointment of the educators in Annexure “B” to the notice of motion:

[3.1] The fourth respondent is directed to publish an open educator bulletin by not later than 30 April 2015 which shall include a request that responses to the bulletin be submitted directly to all schools.

[3.2] The School Governing Boards (“SGBs”) of the applicants may interview and make recommendations to fill these posts within 30 days.

[3.3] It is declared that, in the event that the first respondent and the fourth respondent fail to act on such recommendations of the School Governing Boards within 15 days, the educators will be deemed to have been appointed, in which event the fourth respondent is directed to issue each such educator with a letter of appointment within 10 days thereafter,

[3.4] The fourth respondent is directed to publish at least four open post bulletins a year; the first before the end of April 2015, the second before the end of July 2015, the third before the end of September 2015, and the fourth before the end of November 2015.

[3.5] The fourth respondent is directed to circulate the drafts of the post bulletins to the relevant schools, within a reasonable time prior to publishing them, so that the schools can confirms the information and correct any errors.

[4] It is declared that the first and fourth respondents are legally required to take all necessary steps to fill the vacant posts advertised in the four annual open bulletins with permanent named educators within 60 days of the advertisement of the open bulletins.

[5] Any party (including any member of the class) may approach the court, on reasonable notice to all other parties and on duly supplemented papers, to seek appropriate relief in respect of any part of this order. In the event of any dispute of fact regarding any amount payable in terms of this order or any other issue that cannot be resolved on motion, any party may refer the issue(s) to oral evidence.

[6] It is directed that the first to fourth respondents are to pay the applicants’ costs, including the costs of two counsel, and including any disbursements arising from the implementation of this order and the costs of the Claims Administrators.”

I indicated that my reasons would follow which they now do.

[2] The application concerns the ongoing failure by the Eastern Cape Department of Basic Education (the Department) to appoint educators in vacant posts at various public schools throughout the province, and the consequent violation of the right of the children at those schools to basic education as guaranteed by Section 29 of the Constitution.  The applicants are 90 public schools who opted in to class proceedings certified by this court on 20 March 2014.  The first respondent is the Minister of Basic Education who bears constitutional and statutory responsibilities in respect of the provision of basic education and the administration and funding of public schools.  She is cited by virtue of the decision to place the Eastern Cape Department of Basic Education under administration in terms of section 100 (1) (b) of the Constitution.  The second respondent is the Director-General of the National Department of Basic Education, the official responsible for the execution of the administration in terms of section 100 (1) (b) of the Constitution.  The third respondent is the Member of the Executive Council (the MEC) for Basic Education, Eastern Cape Province, who bears constitutional and statutory responsibilities in respect of the provision, administration and funding of public schools in the Eastern Cape.  The MEC is cited, inter alia, as the person who declared or 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 EEA).  The fourth respondent is the Head of Department (the HOD) of the Department,  who is cited as the bearer of constitutional and statutory powers and duties, as the official employer of all educators employed by the Department, and as the accounting officer of the Department.  The fifth, sixth and seventh respondents are trade unions against whom no relief was sought.  The application was opposed by the first to fourth respondents.  I shall refer to them collectively as the respondents.

[3] Thirty two schools in the province originally applied for similar relief to that contained in the above order (Part A of the application), and on 20 March 2014 Alkema J granted the following order by agreement between those schools and the first to fourth respondents:

“[1] That in respect of the amounts paid by the applicant schools’ governing bodies to educators occupying substantive vacant posts on the 2013 provincial educator establishment set out in Annexure A to this order subject to there being no educators excess to the establishment at that school occupying equivalent posts at the time of and for the duration of the appointment;

[1.1] The respondents are directed to reimburse the applicants schools by paying the applicant school governing bodies the amounts set out in annexure A, provided that such amounts were not in excess of the usual remuneration in respect of the substantive vacancy of the applicant school concerned within 120 days of the applicant school submitting the full details of both the expenditure and vacant post against which the educator was appointed.

[1.2] It is declared such amounts constitute debts owed by the respondents to the applicants schools in terms of the State Liability Act 20 of 1957;

[1.3] It is declared where the respondents fail to pay such amounts to the applicant schools within 120 days of submitting the details required in terms of paragraph 1.1 above, the applicant schools are authorised to secure satisfaction of the amounts due in accordance with the procedures set out in terms of section 3 of the State Liability Act 20 of 1957;

[1.4] In the event of a dispute between the parties regarding the amount owed to or the existence of a vacant post at the applicant school, a duly delegated departmental official will meet with the applicant school representative and their respective legal representative’s to attempt to resolve the dispute within 30 days of the submission of the information in paragraph 1.1;

[2] That in respect of the educators listed in Annexure B to the notice of motion:

[2.1] The educators listed on Annexure B to this order who are suitably qualified and who occupy vacant substantive posts on the 2014 post establishment in circumstances where there are no educators in excess in respect of equivalent posts on the post establishment at that school, will be appointed as temporary educators at the applicant schools to the substantive vacancies within 30 days of the receipt of submission of the qualifications of the educator, provision of the details of the substantive vacant post and the recommendation of the governing body for a period from 1 January 2014 until 30 June 2014.

[2.2] All the educators listed in Annexure B who are Funza Lushaka bursary holders will be appointed permanently with effect from 1 January 2014 within 30 days of the submission of the qualification of the educator, the details of the substantive post, confirmation that he or she is a Funza Lushaka bursary holder and the recommendation of the governing body.

[2.3] The educators referred to in paragraph 2.1 will be permanently appointed with effect from 1 July 2014 in terms of the Collective Agreement no 1 of 2014 as read with the Employment of Educators Act unless the Fourth Respondent identifies a suitable educator in excess who is accepted by the relevant school governing body by 30 June 2014;

[2.4] In the event that there is a dispute as to whether or not a vacant substantive post exists at each applicant school a duly delegated official of the respondent will meet with the applicant school and their respective legal representatives to attempt to resolve this dispute within 30 days of the receipt of the documentation in paragraph 2.1;

[2.5] The applicant schools are to provide the respondents with profiles of all vacant substantive posts not filled in terms of paragraph 2.1 and educators in excess to the 2014 post established, if any within 30 days of this order;

[3] That it is directed that:

[3.1] The fourth respondent, or a duly delegated official is to serve and file a report within 90 days of the court order detailing the respondents’ compliance with paragraph 1 and 2 of this order, such report to include a list of all educators who have been provided with letters of appointment and copies of the letters of appointment and the amount of money to be paid to the applicant school in respect of paragraph 1:

[4] That any party may re-enrol this matter, on reasonable notice and on duly supplemented papers, to seek appropriate relief in respect of the steps to be taken in terms of paragraphs 1 to 3 of this order.

[5] That the respondents are to pay the applicants’ costs, including the costs of two counsel.

PART B:

[1] That an opt-in class (“the class”) is certified consisting of all public schools in the Eastern Cape who, as at the date of this order:

[1.1] Have educator posts allocated to them on the 2014 post establishment which have not been permanently filled; and/or

[1.2] Have appointed and remunerated educators occupying vacant substantive posts that have not been filled and have not been reimbursed by the respondents subject to there being no excess educators occupying equivalent posts on the applicable declared post establishment of the applicant school for the duration of such appointment.

[2] That the Legal Resources Centre, Grahamstown, is authorised to act as the legal representatives of the class for the purpose of seeking appropriate relief regarding vacant teaching posts on the 2014 post establishment and the failure of the respondents to reimburse schools for salary payments made to educators;

[3] That notice shall be given to prospective members of the class in the following manner:

[3.1] The applicants are directed to publish the notice annexed hereto as Annexure C on one occasion during the period 25 March to 11 April 2014 in English in the Daily Despatch and EP Herald and in Afrikaans in Die Burger;

[3.2] The applicants are directed to cause the notice annexed hereto as Annexure C to be broadcast in isiXhosa on Umhlobo Wenene on one occasion during the period 25 March and 11 April 2014; and

[3.3] The respondents are directed to circulate the notice to all districts and schools in the Eastern Cape by 7 April 2014 and to place a copy in a prominent position on its website from 7 April 2014 to 21 April 2014.

[4] That all members of the class who wish to opt-in to the class proceedings as well as the applicant schools are directed to provide the Legal Resources Centre by not later than 12 May 2014 with the following information:

[4.1] A list of the substantive vacancies on the 2014 post establishment at the school concerned;

[4.2] The payments made by the school to educators in permanent posts (together with proof of such payments) and which have not been reimbursed by the respondents.

[4.3] Profiles of all vacant substantive posts and educators in excess on the 2014 post establishment;

[5] That the applicants shall by 30 May 2014 file the information referred to in paragraph 4 above with a notice of motion seeking substantive relief on behalf of the class and any further affidavit that is necessary.

[6] That the matter is set down for hearing on 31 July 2014.”

[4] The present application (Part B) followed.  Paragraph 1 of my order related to amounts which had been paid by the schools to educators appointed by the schools themselves in the vacant posts, which amounts were to be reimbursed by the Department.  Annexure A to the notice of motion contained a list of the schools and the various amounts they had paid up to and including 2014.   Annexure B to the notice of motion contained a list of the schools and the names of the educators currently teaching in the vacant posts at those schools, and who are now deemed to be appointed in terms of the order.

[5] The founding affidavits in Parts A and B were deposed to by Ms Sarah Sephton, an attorney employed at the Legal Resources Centre.  She referred to the process of “post provisioning” whereby the Department of Basic Education and the Head of Department annually determine the number of teaching posts to which each public school in the province is entitled, after consideration of factors such as the available resources, the number of learners at each school, the number of children of school-going age in the province and school sizes.  In 1994 the Eastern Cape province inherited an unequal education system which included under-funded and under-resourced schools in the poor former homelands.  Post provisioning was introduced by the government in 1996 and was and is a strategy to ensure equal education in the province.  It is the only legal mechanism available to deploy educators from overstaffed schools to understaffed schools.   The first to fourth respondents are obliged to appoint educators permanently to the determined posts.  Since 2011 the Department has timeously declared educator post establishments but has repeatedly failed to appoint educators in vacant substantive posts during the years 2011 to 2014 or has failed to pay the appointed educators.

[6] As a result schools have themselves appointed and paid educators in unfilled vacant posts.  The salaries for these educators are not included in the schools’ budgets and payment by the schools of their salaries reduces the financial resources needed for other school activities.  Non-fee-paying schools do not have the funds to fill their vacant posts with the result that they suffer a shortage of educators and in some instances there are no educators at all.

[7] Ms Sephton pointed out that in Part A of the application the first to fourth respondents admitted that they were required to fill all vacant posts and were liable in principle to reimburse schools which had paid educators occupying vacant posts.  In the present application, Part B, they similarly acknowledge such obligation.  The Department’s given reason for not filling vacant posts is that it is attempting to move educators in excess at various schools to the vacant posts.  Ms Sephton described the slow and incomplete attempts by the Department to move these excess educators.

[8] She referred to Collective Agreement 1 of 2014, which is an agreement entered into on 31 January 2014 between the Department and the education sector trade unions, and ratified by the Eastern Cape Labour Relations Council (the ECLRC).  The subject of the agreement is described as “Permanent appointment of temporary educators in vacant substantive posts and transfer of serving educators in terms of operational requirements.”  The identification and movement of educators in excess was to have taken place by the end of March 2014.  The deadline was not met and the management plan for implementing the agreement was revised, with the deadline now 30 April 2014.  The deadline was further extended, and as at the date Ms Sephton deposed to the second founding affidavit, 6 June 2014, the applicant schools still had substantial vacancies.  Annexed to the second founding affidavit was a letter from the Acting District Director of the Department addressed to the trade unions and school principals informing them that the identification of additional educators would resume on 8 and 9 May 2014.  A letter from the ECLRC dated 28 May 2014 addressed to the Department and the trade unions indicated that a meeting called by the Department for the management of the Collective Agreement was postponed at the request of the Department and the fifth respondent.  The author of the letter stated that she was of the view that it was a very important meeting because the processes for the completion of the Collective Agreement had come to a standstill and problems were increasing.  The date in the amended management plan for the identification of additional educators was given as 27 October 2014 but at the time the replying affidavit in part B of the application was deposed to this date had come and gone.  Many schools have contacted the Legal Resources Centre out of desperation, because they are running out of funds to pay educators who occupy vacant posts, and will have to resort to a substantial increase in school fees.

[9] Ms Sephton pointed out that the Department has contended in litigation over the past three years that it was about to make progress in moving additional educators and appointing them in vacant posts.  However, little progress has been made.  She stated that there were over 3000 vacant substantive posts in the province and the schools in these class proceedings have approximately 259 vacant post level 1 posts.  Even when ordered by a court to do so, the Department had not permanently appointed educators in vacant posts.  For example in Centre for Child Law and Others v The Minister of Basic Education and Others [2012] 4 All SA 35 (ECG) by agreement the first to fourth respondents were ordered, inter alia, 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 (subsequently extended to 20 December 2012).  They were also ordered to ensure that the 2013 educator establishments for public schools consisted of posts that were fully funded and to ensure that educators and non-educator personnel were appointed to these posts by not later than 31 January 2013.  The Department failed to take the steps necessary to complete the appointments.  Following Alkema J’s order, the Department identified approximately 20 educators in excess who could occupy vacant posts.  In many cases these educators were not available and had also not been accepted by the particular school governing body (SGB) as provided for in the order.  With regard to reimbursement of the 32 schools, a writ of execution had to be issued and an attachment of property made before payment was made, despite the Department having been given 120 days for payment following the submission by the schools of details of the amounts.

[10] With regard to the publication of post bulletins, Ms Sephton stated that the Department has regularly failed to issue educator bulletins to deal with vacancies caused by natural attrition.  In 2010 and 2011 only two bulletins were published, one of which was closed for educators already in the service of the Department.  In 2012 four bulletins were published but three of them were for principals only and only one was for post level 1, head of department, and deputy principal posts, which are the posts most in need of publishing.  Post bulletin 4 of 2012 contained numerous vacancies for post level 1 and 2 posts.  Hundreds of educators applied for these posts and in many instances the SGB’s shortlisted and interviewed applicants, and submitted recommendations.  In most cases the HOD failed to appoint the educators recommended by the SGB’s.  In 2013 only three bulletins were advertised all of which were for the post of principal.  In 2014 one bulletin was advertised for the post of principal, and another bulletin was closed for educators already in the service of the Department.  According to the Department’s management plan number 2 for the implementation of the Collective Agreement an open bulletin was to be published but this did not happen.  According to Ms Sephton the Department’s conduct in publishing inconsistent and incomplete post bulletin advertisements has led to the situation where there are educators in excess at some schools and a shortage of educators at other schools.

[11] The answering affidavit was deposed to by Mr Raymond Twykhadi, the acting Superintendent General of the Department.  He stated that the order of 20 March 2014 had caused instability and disharmony at schools.  It was argued in the ECLRC that the order had compromised and derailed the implementation of the management plan flowing from the Collective Agreement.  The applicant schools had embarked on a parallel process which should have been referred to the ECLRC for resolution.  The 2015 post establishment has been declared and the distribution of posts is a consultative process with various bodies, including the trade unions.  The applicant schools would be represented in such a process, and would be able to raise matters of dispute during such process, without having to resort to litigation, which impedes the delivery of education to learners.

[12] Mr Twykhadi stated that the Department recognises its responsibilities to provide and remunerate educators in vacant substantive posts and acknowledged that there had been shortcomings in the appointment and remuneration of educators in the past.  He did not dispute lack of compliance with court orders.  He stated however that the Department is presently filling vacant substantive posts and has a management plan regarding the provision of educators for the 2015 post establishment.  The Department would not make any permanent appointments to vacant posts on the 2014 post establishment insofar as such appointments are inconsistent with the 2015 post establishment.  The monies paid to the applicant schools in Part A of the application placed a strain on the Department’s budget and impeded the Department’s ability to continue to fill substantive vacant posts.

[13] Further with regard to the budget, as at 31 March 2014 there was already a projected over-expenditure of R650 495 034.00, excluding the amounts claimed by the schools in Part B of the application.  No provision for these claims has been made in the current financial year.  Alkema J’s order was agreed to in respect of the 2014 post establishment and monies paid by the schools to educators occupying vacant posts on the 2014 post establishment.  These claims would be paid by 31 March 2015.

[14] With regard to post bulletins, Mr Twykhadi stated that publication thereof is not a unilateral decision which the Department can make and is regulated in terms of collective agreements concluded in the ECLRC.  Appointments and bulletins are part of a consultative process and disputes in relation thereto should be raised in the ECLRL.

[15] When the matter was heard, it resolved into three areas of dispute: payment and its administration, the deemed appointment of educators, and the publication of bulletins.

PAYMENT

[16] It was submitted on behalf of the respondents that they agreed to Alkema J’s order on the basis that it related to payment of educators on the 2014 post establishment, whereas amounts were claimed for payments made to educators in 2011, 2012, 2013 and 2014.  Reference was made to the notice of motion in the certification application wherein the opt-in class to be certified consisted of all public schools in the Eastern Cape who had educator posts allocated to them on the 2014 post establishment which had not been permanently filled and who had made salary payments to educators and had not been reimbursed.  Further reference was made to the founding affidavit in the certification application where it was stated:

“The class is defined as all public schools in the Eastern Cape Province which have vacant substantive posts on their 2013 and 2014 educator post establishments and seek to ensure that these posts are filled on a permanent basis and that they are reimbursed the full amount that they spent on educators filling vacant substantive posts in 2013.”

[17] In view of the fact that the order was granted on 20 March 2014, so it was submitted, the reference to 2013 became a reference to 2014.  It was submitted that the respondents acknowledged that payments for years prior to 2014 may have been made and that the respondents would consider such claims.  It was pointed out on behalf of the applicants that in the notice of motion in the certification application the proposed opt-in class included public schools which:

“Have made salary payment to educators in permanent posts and have not been reimbursed by the respondents.”

There was no restriction to a particular year when such salary payments were made.

Similarly paragraph 1.2 of Part B of Alkema J’s order contained no such restriction.

[18] I was therefore of the view that the claim for reimbursement in respect of other years was competent.  It is not necessary to deal with the other arguments raised by the applicants in support of the claims in respect of years other than 2014.

[19] The other disputed aspect of the order sought in respect of payment was the appointment of claims administrators.  In seeking this order, counsel for the applicants referred, inter alia, to the following passage in Meadow Glen Home Owners Association and Others v City of Tshwane Metropolitan Municipality and Another [2014] ZASCA 209 (1 December 2014) para [35] (footnotes omitted):

“Both this Court and the Constitutional Court have stressed the need for courts to be creative in framing remedies to address and resolve complex social problems, especially those that arise in the area of socio-economic rights. It is necessary to add that when doing so in this type of situation courts must also consider how they are to deal with failures to implement orders; the inevitable struggle to find adequate resources; inadequate or incompetent staffing and other administrative issues; problems of implementation not foreseen by the parties’ lawyers in formulating the order and the myriad other issues that may arise with orders the operation and implementation of which will occur over a substantial period of time in a fluid situation. Contempt of court is a blunt instrument to deal with these issues and courts should look to orders that secure on-going oversight of the implementation of the order.  There is considerable experience in the United States of America with orders of this nature arising from the decision in Brown v Board of Education and the federal court supervised process of desegregating schools in that country. The Constitutional Court referred to it with approval in the TAC (No 2) case. Our courts may need to consider such institutions as the special master used in those cases to supervise the implementation of court orders.”

[20] I am respectfully of the view that the order sought and granted for the appointment of claims administrators falls within the type of relief contemplated in the above passage.  The application involves socio-economic rights and there is a strong likelihood that there will be administrative problems encountered in the implementation of payment by the Department.  As was mentioned by Ms Sephton, the Department had 120 days to pay the first 32 schools following submission of the details of the various amounts, but a writ of execution still had to be issued and an attachment made before payment was made.  Taking into account the much larger number of schools now involved and the financial situation they have been placed in as a result of the Department’s failure to appoint educators, an efficient and independently accountable method of payment is essential.  It is a method which I believe will be of assistance not only to the applicants but also to the Department. 

[21] While it was not submitted on behalf of the respondents that such an order was outside this court’s powers, it was submitted that it would be costly to appoint a firm of accountants and the prescribed procurement process would have to be followed.  There was no indication in the answering affidavit of the contemplated cost of the appointment of a firm of chartered accountants.  Taking into account the number of claims and the duties of the claims administrators described in the order, their charges will not be insubstantial but it is unlikely they will make a significant inroad into the budget of the Department in its overall extent.  With regard to the prescribed procurement procedure, counsel for the applicants referred to Treasury Regulation 16A 6.4 of the Treasury Regulations of March 2005 issued in terms of the Public Finance Management Act 1 of 1999, which allows for a deviation from the competitive bid process.  Given the terms of the order relating to the appointment of a claims administrator, this would be a situation of urgency or emergency justifying a deviation from the competitive procedure.  (See Joubert Galpin Searle and Others v The Road Accident Fund and Others [2014] 2 All SA 604 at para [79].)

DEEMED PERMANENT APPOINTMENT OF EDUCATORS

[22] This is the heart of the matter.  Counsel for the respondents conceded that the Collective Agreement was not a bar to the relief claimed.  However, she referred to the provisions of the EEA dealing with the appointment of educators and submitted that these provisions could not be glossed over, given their purpose.   For example s 6 (3) (b) provides that a school governing body, in considering applications, must ensure that the principles of equity, redress and representivity are complied with and must adhere to democratic values and principles.  S 6 (3) (c) provides that the School Governing Body must submit three names of recommended candidates to the HOD.  The Department, so it was submitted, has no knowledge of the qualifications of the educators sought to be permanently appointed.

[23] Counsel for the respondents also submitted that the relief sought in this application differed from the relief granted in Alkema J’s order which contained safeguards, and suggested that the various educators similarly be appointed temporarily for six months so that their qualifications could be considered.  Further, so it was submitted, there might be Funza Lushaka bursary holders who ought to be appointed in the vacant posts.

[24] When one considers the orders made in the past, including Alkema J’s order, the Department has had ample time and warning to appoint educators permanently in the vacant posts at the applicant schools.  Yet in December 2014, close to the start of the 2015 school year, the applicant schools were in the same dire situation, in spite of this application being served on 9 June 2014.  The Department has demonstrated that the leeway afforded to it in previous more open-ended orders has not expedited the process.  The extension of time frames for implementation of the Collective Agreement predicts in my view further delay and inaction.  The significance of the right to basic education was dealt with in Governing Body of the Juma Musjid Primary School and Others v Essay NO and Others 2011 (8) BCLR 761 (CC) at paras [42] and [43] as follows (footnotes omitted):

“[42] The significance of education, in particular basic education for individual and societal development in our democratic dispensation in the light of the legacy of apartheid, cannot be overlooked. The inadequacy of schooling facilities, particularly for many blacks was entrenched by the formal institution of apartheid, after 1948, when segregation even in education and schools in South Africa was codified. Today, the lasting effects of the educational segregation of apartheid are discernible in the systemic problems of inadequate facilities and the discrepancy in the level of basic education for the majority of learners.

[43] Indeed, basic education is an important socio-economic right directed, among other things, at promoting and developing a child’s personality, talents and mental and physical abilities to his or her fullest potential.  Basic education also provides a foundation for a child’s lifetime learning and work opportunities. To this end, access to school – an important component of the right to a basic education guaranteed to everyone by section 29(1)(a) of the Constitution – is a necessary condition for the achievement of this right.”

[25] For those people in this country who take for granted not just education but quality education, the notion of a school with insufficient educators, or no educators, is unthinkable and incomprehensible.  In some instances, lost academic years might never be recovered.  Who knows the extent to which the futures of some children, as contemplated in the passage from Juma Musjid above, will be adversely affected?  The children of poor families will suffer the most because the schools they attend cannot afford to pay educators to occupy the vacant posts.  A decent education is probably the only means of escape for these children from the confines of their poverty.

[26] In my view, as was submitted, the ongoing violation of the right to basic education constitutes exceptional circumstances.  It is time for a court to substitute its own plan of action for that of the Department.  This is a case where the decision (or in this case the permanent appointment of educators in substantive vacant posts) should not be left to the designated functionary.  (See The Gauteng Gambling Board v Silverstar Development Ltd and Others 2005 (4) SA 67 (SCA) at para [28].) 

[27] There is a safeguard in the order in that the educators must be suitably qualified.  There was no suggestion from the respondents that they are not suitably qualified for appointment and are not performing their work satisfactorily.  The respondents have known the names of the schools and the educators involved since the application was served and have had ample time to investigate.  There was no mention in the answering affidavit that there are Funza Lushaka bursary holders available to fill any of the vacant posts.  It does not at this late stage rest with the Department to ask to engage in a lot of time consuming paper work as was the case with Alkema J’s order, which was granted much earlier in the year. There must be no more delay.  

[28] In Head of Department : Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC) at paras [96] and [97] the following was said with regard to a court’s remedial powers in terms of section 172 (1) (b) of the Constitution (footnotes omitted): 

“[96] The power to make such an order derives from section 172(1)(b) of the Constitution. First, section 172(1)(a) requires a court, when deciding a constitutional matter within its power, to declare any law or conduct that is inconsistent with the Constitution invalid to the extent of its inconsistency.  Section 172(1)(b) of the Constitution provides that when this Court decides a constitutional matter within its power it “may make any order that is just and equitable”. The litmus test will be whether considerations of justice and equity in a particular case dictate that the order be made. In other words the order must be fair and just within the context of a particular dispute.

[97] It is clear that section 172(1)(b) confers wide remedial powers on a competent court adjudicating a constitutional matter. The remedial power envisaged in section 172(1)(b) is not only available when a court makes an order of constitutional invalidity of a law or conduct under section 172(1)(a). A just and equitable order may be made even in instances where the outcome of a constitutional dispute does not hinge on constitutional invalidity of legislation or conduct. This ample and flexible remedial jurisdiction in constitutional disputes permits a court to forge an order that would place substance above mere form by identifying the actual underlying dispute between the parties and by requiring the parties to take steps directed at resolving the dispute in a manner consistent with constitutional requirements. In several cases, this Court has found it fair to fashion orders to facilitate a substantive resolution of the underlying dispute between the parties. Sometimes orders of this class have taken the form of structural interdicts or supervisory orders.  This approach is valuable and advances constitutional justice particularly by ensuring that the parties themselves become part of the solution.”

[29] The order sought and granted is in my view a just and equitable one.  The dispute is the failure by the Department to appoint educators in vacant substantive posts at the applicant schools.  The respondents spelled out their difficulties in meeting their acknowledged constitutional obligation.  The order assists them to fulfil that obligation and at the same time provides immediate and urgently needed relief to the applicant schools and the affected children.

BULLETINS

[30] The objection to this aspect of the order was that the publication of bulletins is a consultative process which takes place in conjunction with collective agreements, and that the applicants cannot dictate to the Department how it should perform its administrative functions.  The allegations made by Ms Sephton concerning the sporadic publication of bulletins and the failure to appoint educators even when SGB’s submitted recommendations were not disputed.  In my view the Department’s conduct in relation to the publication of bulletins can only exacerbate the crisis concerning the appointment of educators in substantive vacant posts and the circumstances equally call for a remedy in the form of a just and equitable order.  The Department has not disputed that it should publish bulletins and the order granted in this respect merely enforces this duty in a consistent and efficient manner, to the benefit of schools and learners.

[31] These were my reasons.

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J.M. ROBERSON

JUDGE OF THE HIGH COURT

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