NGOs go to court to enforce intervention in Eastern Cape

Papers submitted to the Eastern Cape High Court have thrust President Jacob Zuma to the centre of a chain of events that have prevented Section 100, an order that places provincial departments under national control, from being carried out in the province.

Cabinet took control of the province’s education department in March last year, citing long-standing inefficiency and maladministration. The department admitted to overspending, while programmes such as scholar transport and school nutrition ground to a halt. However, Cabinet’s takeover did not work because of hostility towards the administrators appointed by Education Minister Angie Motshekga, and the team was forced to withdraw last year, the minister announced last month.

Now, the non-governmental organisations Save our Schools and Community (Sosac) and the Catholic Institute of Education have asked the Eastern Cape High Court to overturn Zuma’s decision to withdraw the national intervention team. Their papers record that Zuma met the Eastern Cape education task team at his Genadendal Residence in Cape Town in September last year and said the following day the provincial department could run itself and did not need to be taken over by national administrators.

Instead, the papers say, he announced a team of five national ministers and five provincial ministers, who would monitor progress in the provincial department.

The court application argues that Motshekga and MEC Mandla Makupula had signed a memorandum of understanding by which administration would be handed over to the national department in May.

The memorandum said the national minister now bore responsibility for the implementation of all statutory and constitutional obligations pertaining to the delivery of education in the province. This was, however, negated by Zuma after the Genadendal meeting, the applicants argue. Zuma’s decision to withdraw the national team was “at odds with the section 100(1)(b) intervention” as well as with the terms of the memorandum.

“In terms of section 100(1)(b) intervention, the national executive has assumed responsibility for the obligations in question,” Sasoc co-ordinator Nomalanga Mkhize states in her affidavit. “The statement — reverses that [the national executive mandate].”

These contrary messages, Sosac says in its application, have led to confusion about who is responsible for running the Eastern Cape education department. The organisation alleges that the South African Democratic Teachers’ Union (Sadtu) and the provincial department are using the status quo to advance their legal battles over the determination of teachers’ posts. The applicants argue that a separate application Sadtu made last year asserted that since section 100 was applied, this was now the responsibility of the national department, but Makupula and department head Modidima Mannya had opposed it “contending [they] have the power to undertake the post, because the section 100 (1)(b) intervention is not legally effective and operational”.

Problems regarding the allocation of teaching posts, over which Sadtu went on a four-week go-slow, continue to disrupt schooling in parts of the province. Sosac gives an example of teacher-post mayhem at two Grahamstown schools, highlighted in a Daily Dispatch report last month.

Mary Waters High School and Benjamin Mahlasela High School are about 2km from each other, but have contrasting staffing problems. The latter school is grossly overstaffed, with 14 teachers for its 100 learners, while the former is chronically understaffed and has only 27 teachers for 1068 learners.

“The fact that the intervention remains incomplete is a breach of an obligation imposed by sections 7(2) and 100(1)(b) of the Constitution,” says Mkhize in her affidavit. “The consequences are felt by children every day.”

The Mail & Guardian reported two weeks ago that hostility from various political groups in the Eastern Cape forced Motshekga to abandon her intervention drive. The groups were amenable to Zuma’s intervention, largely because it did not shift core responsibilities to Motshekga’s team.

Zuma, Motshekga, Makupula, Mannya, and director general Bobbie Soobrayan, have filed notices to oppose the application. The M&G understands they will file their opposing affidavits later next week, just a week before the hearing.

But the national education department’s spokesperson, Panyaza Lesufi, could not comment on the basis on which they would oppose.

“We are advised that this matter is sub judice,” he said.

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