Schools championing the urgent filling of 3 000 vacant teacher posts in the Eastern Cape have breathed a sigh of relief after an out-of-court agreement was reached with the basic education department on Wednesday.
But the appointment of crucial non-teaching staff remains in dispute and was argued before the Grahamstown High Court on Thursday.
"A settlement basically means we have a major victory," said Ann Skelton, director of the Centre for Child Law. "The department has acknowledged that it has to [meet our demands], but there are some details that we need to discuss."
The centre and five other applicants, represented by the Legal Resources Centre, asked the court in May to order Basic Education Minister Angie Motshekga and acting Eastern Cape education department head Mthunywa Ngonzo to implement fully its 2012 "post-provisioning plan" and fill vacant teacher posts.
"[You can] share textbooks, but you can't have a lesson without a teacher," Skelton said.
Jacques Hugo, the principal of Cape Recife High School, an institution serving children with special needs, said he was "very happy to hear that most of the demands have been met".
"It is a relief that we don't have to go through a whole long, protracted thing in court.
A huge burden
"It would make such a difference to have vacant teacher posts filled because we have been paying for those teachers ourselves for so many years. It's been a huge burden on parents."
The Mail & Guardian previously reported on the financial perils many Eastern Cape schools face that have had to pay teacher salaries from their own coffers ("Vacant teacher posts case 'not urgent'", July 13 to 20 2012).
Over just three months, 10 no-fee schools near Port Elizabeth paid more than R2-million for teacher salaries that should have been paid by the government.
Three weeks ago, rights organisation Section27 intervened on behalf of the National Association for School Governing Bodies to clarify obligations arising from the national department's section 100 intervention in the province, which was implemented in March last year.
The applicants also asked the court to force the minister to declare by September 30 how many teacher posts, as well as non-teaching posts such as administrative staff, cleaners and care workers, it would fund in 2013.
A long-term departmental moratorium on the appointment of non-teaching staff, appeared to be a stumbling block in Thursday's court hearing.
Applicants argued that it was the government's responsibility to declare how many posts for non-teaching staff it would fund, but respondents said the moratorium prevented them from doing so, Skelton said. Judgement on the case was reserved and "will be handed down soon".
The need for non-teaching staff was especially "acute" in schools for children with special needs such as Cape Recife, Hugo said.
Hugo said the school needed "24-hour staff attention to look after learners' basic needs in the hostel".
Facing an onsluaght
Meanwhile, concerns remain about the desperate conduct of the embattled department in its approach to the recent onslaught of legal action.
Skelton acknowledged that going to court could have been avoided.
"It's puzzling that the department came to court with technical arguments two weeks ago, argued that this matter is not urgent … [then] pushed for a postponement which was granted… [and] kept changing its arguments. Why did it spend so much money, effort and time on this if it was going to settle anyway?"
Section 27's director, Mark Heywood, said there was "internal chaos and fragmentation within the department".
"The department came to court two weeks ago thinking it would win with its objections to urgency," he said. "Once it lost [this] it looked like it had nothing ready."
"Delay tactics" surrounding non-governmental organisation Equal Education's suit on school infrastructure, which was first heard in the Bisho High Court in March, were problematic, deputy general secretary Doron Isaacs said.
"The minister was actually granted three extensions to file her answering affidavit … the first two were officially agreed to. The third was denied, but there was still a delay before [the affidavit] was received."
The national and Eastern Cape education departments had not replied to the M&G's questions at the time of going to print.