Thousand Limpopo pupils are still without textbooks.
The Limpopo textbooks debacle is fundamentally the fault of the province's education department, argues the national department in the saga's latest legal spat.
But non-governmental organisation Section27 responded this week by saying that much of the basic education department's 650-page affidavit was irrelevant in the light of its admission that it had not yet delivered 100% of textbooks and so had not complied with two court orders to do so.
Section27 went back to the North Gauteng High Court on September 10, claiming that thousands of Limpopo pupils were still without the textbooks they needed.
It is asking the court to order the department to deliver all textbooks to grades R, one, two, three and 10 pupils by October 31. It also wants the "inadequate" catch-up plan for grade 10 pupils to be revised so that it includes more classroom time and teacher support, and a separate plan for learners in the foundation phase.
The department's opposing affidavit, signed by director general Bobby Soobrayan and also submitted on behalf of Limpopo education MEC Dickson Masemola, said: "The [provincial department] did not comply with its constitutional obligation to provide basic education to learners in Limpopo province."
The department was already R2.6-billion in the red when the national department took it over in December last year. It had also dismantled its books unit, leaving "no staff, infrastructure, procurement policy" and funds with which the national intervention team could work.
The affidavit frequently refers to the "predicament" the national department found itself in. It "could not and did not plan ahead to intervene in Limpopo province", "had no designated staff" or "allocation available in its annual budget" and had to "reinvent the wheel" regarding textbook procurement.
Irrelevant
But Section27's replying affidavit, filed on Wednesday this week, challenged much of the department's lengthy argument, saying: "Allegations regarding the history of the matter leading up to the first court order are irrelevant and should have been raised prior to the first court order being granted."
Instead, the "matter should stop" with the department's admission that delivery remained incomplete and that it had therefore not complied with two court orders.
Section27 attorney Nikki Stein told the Mail & Guardian the organisation acknowledged that taking over textbook procurement from a province was a difficult job.
"But the bottom line is that there are two court orders against the department and it has not complied with either of them."
The matter is due to be heard in court on Tuesday, but the department's affidavit also argued that it was unnecessary to "burden" the court with more legal action because delivery of outstanding textbooks "should be achievable by the first week of October" and the delivery of textbooks for next year would "be completed by December 15 2012".
Its catch-up plan for grade 10s was adequate, it argued, because of interventions such as providing subject guides for teachers and workbooks for pupils, among others. Devising another catch-up plan would "delay the implementation of … the spring school, which is about to commence [in the first week of October]".
But Stein said there was a clear need for the department to return to court. Three deadlines for delivery had already been missed and there had been no movement in textbook delivery since July.
"The movement we have seen in textbook delivery happened after this [new] application was filed and so appears to be a response to our intention to go back to court," she said.
The organisation also wants further detail about the "spring school". "It is unrealistic to expect that effective catch-up of three terms' worth of subject matter may be completed before the end of the academic year," its affidavit said.
The provincial department spokesperson, Pat Kgomo, declined to comment, saying: "We are leaving this matter to the [national department]".
National department spokesperson Panyaza Lesufi also declined to comment, saying: "It will be ideal to allow the court to deal with all the issues raised without undue influence." He said Section27 was "engaging in unnecessary media attacks on a matter that is currently in court".