The basic education minister and three other respondents will oppose the court action taken by Eastern Cape school governing bodies over the province's failure to entirely fill the 64 752 teaching posts it budgeted for this year.
The Legal Resources Centre (LRC) two weeks ago filed an urgent application at the high court in Grahamstown to compel Motshekga and three other respondents in the case – including acting Eastern Cape education department head Mthunywa Ngonzo – to fully implement the 2012 plan to fill the posts.
There had been some confusion over whether the department would oppose the action in court or attempt to mediate a settlement out of court. Ministerial spokesperson Hope Mokgatlhe told the Mail & Guardian that the department would not oppose, but court documents show that this is not the case.
"The department is not considering opposing. We will engage the applicants in order to see if this matter can be settled out of court. A consultation will take place with the relevant officials of the Eastern Cape on June 14 2012 to see how this matter can be resolved as soon as possible," Mokgatlhe told the M&G.
"A state attorney filed a notice of intention to oppose on behalf of all of the respondents on Friday afternoon," regional LRC director, Sarah Sephton, said.
Among the respondents are basic education director-general Bobby Soobrayan and Eastern Cape education minister Mandla Makupula.
The application deals with "the failure of the respondents to implement the 2012 educator post establishment in the Eastern Cape, the consequent failure to appoint teachers to vacant substantive posts and the failure to appoint temporary teachers to these posts pending the implementation of the 2012 post establishment".
Sephton said there were thousands of vacant teaching posts in the province as well as thousands of teachers in excess at schools. Teachers in excess needed to be shifted to schools with vacant posts to ensure all learners had teachers in front of them, she added.
The lawsuit is hoped to ensure that "teachers will be appointed to posts permanently so there will be no chaos of temporary appointments every year and hopefully there will be adequate preparation for next year so teachers will be in front of pupils from the day schools open," she said.
In March last year Motshekga implemented section 100 1(b) of the Constitution and placed the province's education department under administration in an attempt to address the chaos that has left schools without textbooks and stationery, and scuttled scholar transport programmes amid allegations of wider corruption in management, among other serious problems.
The LRC is representing six applicants, including the Centre for Child Law, the school governing bodies of four Eastern Cape schools and a crisis committee based in Port Elizabeth – comprising of two principals, six parents and two teachers – which represents 17 schools from the city's northern areas.
The application is asking that the 2013 educator post establishment be declared by September 30 2012 and implemented in full by December 30 2012 and that this include non-teaching staff.
The governing bodies of two other schools, Cape Recife High School and PJ Olivier High School have applied to be the seventh and eighth applicants in the case.
Cape Recife High School is a special needs school for learners who require specialised teaching programmes, facilities and therapy. The school includes learners with specific learning disabilities, physical disabilities, cerebral palsy and autism, among others.
The school's post-establishment comprises of 37 educators, including therapy posts. Eleven of these posts, including educational therapists' posts, are vacant.
Chairperson of the school's governing body, John Dakin, said: "The failure to implement the post establishment forced the school to fund a number of teachers on a temporary basis out of its own limited funds as well as forcing the school to fund the appointment and salaries of non-teaching staff. The school is on the verge of exhausting its own funds raised from fees and fundraising."
"There is no indication that the situation will be remedied in the near future," he said, "and it is impossible for the school to function without permanent staff appointed against the post establishments.