It became apparent in the North Gauteng High Court on Tuesday that NGO Section27's latest lawsuit against the department of basic education over textbooks delivery in Limpopo could have been settled out of court, but a soured working relationship between the two parties has thrust them back to court.
Court proceedings were delayed for more than two hours, while legal representatives of the NGO and the department negotiated a possible settlement. After the negotiations and various rounds of caucusing, the parties agreed on most points they were disputing.
They submitted documents detailing their agreements to court, and Judge Jody Kollapen is expected to rule on three remaining disputes on Thursday.
The remaining disputes argued in court was whether an independent team, which would verify textbooks delivery in Limpopo, should be instituted in the next few weeks; if Kollapen should order the department to pay punitive costs; and how catch-up programmes should be formulated.
Section27's court application comes after the department failed to deliver textbooks as per a court order it won in May. Kollapen ordered then that textbooks should reach public schools by June 15.
A second order of June 27 was also missed, but the department maintained on that day it had delivered textbooks to over 90% of secondary schools and all books to primary schools. It has since emerged the department had not bought any textbooks for primary schools by September.
There are still doubts if all Limpopo schools that started the new Caps curriculum in grades one, two, three and 10 have all required textbooks. In his replying affidavit, the department’s director general Bobby Soobrayan said they had delivered 87% of the bought textbooks by August.
But Section27 maintained that what pushed it to go back to court is the department's alleged failure to respond to the NGO's four letters, in which it inquired about progress of textbooks delivery. The two developed a working relationship during the frantic campaign to deliver textbooks in June, but the relationship has since soured.
"Had the respondent replied to all the four letters [of] Section27 … there would have been no need for court," Muzi Sikhakhane, the advocate representing Section27, told the court. This was presented as one of the reasons the department should be slapped with a punitive costs order.
The nature of the working relationship between Section27 and the department was such that "some weeks there’s trust and some weeks there's no trust between them … for various reasons," Sikhakhane.
State attorney Chris Erasmus told court the department hoped gains achieved on Tuesday in terms of "common ground found" over most disputed points heralded a future of cooperation between Section27 and the basic education department.
But the department found it "unfortunate" that because "there was a letter" it did not respond to, it was being hauled back into court, Hope Mokgatlhe, spokesperson for Minister Angie Motshekga, told reporters after the court hearing. "Being here [in court] was very extreme."
"We have a working relationship with Section27," Mokgatlhe said. "They are not our enemies …"
The department, which is said to have restarted a vigorous textbooks delivery campaign after Section27 brought this latest application to court last month, will submit a "final" report detailing progress made in delivering textbooks in two weeks. It is also promising to conclude delivery in November.
Erasmus argued that instituting that independent verification process now would disrupt exams, which start in the next two weeks. He also argued against a punitive cost order.
But the independent verifying work would not disrupt schools, Section27 said. "The independent verifying team is important because the department needs to know which schools are still without textbooks," Section27 attorney Nikki Stein told the Mail & Guardian.
This would also help avoid a situation where schools continue having to do without the requisite textbooks next year, Stein said.
The M&G reported last month that Limpopo pupils in the same grades worst affected by the textbooks debacle this year are likely to suffer the same crisis next year. This was because while the department did not buy any textbooks for grades one, two and three this year, it was now focused on securing textbooks for grades four to six and 11 – grades in which the new curriculum is being phased in next year – and with limited finances.