SECTION27 Statement: 6th August 2012
Eastern Cape High Court Orders the Appointment of Teachers and Non Teaching Staff to all schools in the Eastern Cape:
• States that right to basic education cannot be fulfilled without Non Teaching staff
• Clarifies powers and duties of national government departments when Provinces fail to maintain minimum standards and violate rights
The judgment of the Eastern Cape High Court, handed down on 3rd August 2012, is a groundbreaking vindication of the state’s duties to ensure children have a basic education.
SECTION27 salutes the Centre for Child Law, a number of School Governing Bodies from schools in the Eastern Cape and their legal team, the Legal Resources Centre (LRC), for this important victory for the rights of learners to learn and teachers to teach.
It is regrettable that for the second time in three months a Court has found it necessary to instruct the National and Provincial departments of Basic Education to fulfil their legal duties. It is a sign of what judge Plaskett calls “a crisis of immense and worrying proportions”; a “longstanding failure .. that has endured for over a decade” and “an abject lack of management” that a court has had to place these departments under its supervision and to compel them to stick to timeframes.
All posts must be filled!
In this context, the judgment is a great victory for the right to basic education. Amongst other things:
1. It instructs the DBE to now fill all vacant posts on a permanent basis in its 2012 post-provisioning plan (‘a post-provisioning plan is a plan that Provincial departments are required to draw up every year to allocate teachers to schools in a province based on school needs);
2. It instructs the DBE to pay thousands of temporary educators who have been appointed by SGBs in accordance with this plan – and who have not been paid for months – by 17 August;
3. It instructs the DBE to ensure that rural schools have equal access to teachers with urban schools and that teachers are equitably distributed.
4. It instructs the DBE to publish its 2013 post provisioning plan by 30th September 2012 and to implement it by filling all posts by 31 January 2013.
5. It requires the DBE to “make a report available for inspection at each district office and to the LRC on 3 September 2012, 4 December 2012 and 31 January 2013”.
Non teaching staff are essential!
Further, in a major victory for employment in the Eastern Cape it also forces the DBE from 2013 onwards to make provision for and appointments to non-educator posts which must be filled by 31st January 2013. Judge Plaskett points out that “without proper administration in school, the right of scholars to basic education is threatened.” The judge also points out that this also threatens other fundamental rights that belong to children.
Yet for many years the E Cape government has imposed a moratorium on these appointments, meaning that many schools are denied cleaners, administrators and security staff. This part of the judgment could create tens of thousands of jobs given that there are approximately 5700 schools in the Eastern Cape.
It is very important here to note judge Plaskett’s comment that a moratorium cannot be instituted legally if it places government in breach of its constitutional obligations.
Activists and the media should be aware that this ruling has bearing not only on the Eastern Cape – but on all Provinces.
Where Provinces fail national intervention must take over!
Significantly — at the instigation of the National Association of School Governing Bodies (NASGB), represented by SECTION27 – the Court made an enormously important statement of law in relation to the distribution of powers and duties between the national and provincial education departments.
It pointed out that when the national government finds it necessary to use section 100(1)(b) of the Constitution in order to “maintain essential national standards or meet established minimum standards for the rendering of a service” it “assumes the powers of the provincial administration, and it also assumes its obligations.” The only limitation on this is that it must be “temporarily and in compliance with strict procedures.”
Put simply this means the national department has the power and duty to fire recalcitrant officials, take whatever measures are necessary to maintain services like teachers and textbooks and to take control of budgets. This is something the national Department has refused to do. It is for this reason that 15 months after it took over the province the quality of education has not improved.
SECTION27 calls on the DBE to move quickly to carry out the Court’s order. We call on teacher unions to work closely with the DBE to do this. We call on civil society and school governing bodies not to relax but to closely monitor implementation and ensure that a court order turns into quality education.
For further information contact Mark Heywood.
See attached for the Court’s judgment
Eastern Cape High Court Judgment DBE