What makes the agreement inexplicable and unenforceable, argued Gerrit Pretorius, senior counsel for department, in the Labour Court in Braamfontein, Johannesburg, on Monday is that it would increase salaries by an “astounding” 700% for officials that teacher unions had no mandate for during the year-long negotiations. Furthermore, it would need a whopping additional R750-million annually from the state coffers for financing, Pretorius told the court.
Led by the South African Democratic Teachers' Union (Sadtu), all five teacher unions represented in Education Labour Relations Council have taken the department to court to compel it to implement the agreement. While the department argues signing the agreement was an error and therefore it should not be enforced, Sadtu is joined by the National Professional Teachers' Organisation of South Africa (Naptosa), Suid-Afrikaanse Onderwysersunie, Professional Educators Union and National Teachers’ Union contending Soobrayan knew what he was getting the department into.
The first day of the hearing, which is set for three days, saw Pretorius seeking to push union leaders to admit the agreement was an error and is unaffordable. In addition, he argued it was also flawed because officials who set the examination, moderate and translate question papers stand to have their salaries hiked more than those of markers.
Unions negotiated for salary increments of markers, who are generally teachers and union members, and not examiners, moderators and translators. The latter are mostly university academics and some officials in the department. They received a 100% increase in 2008.
Closing the gap
It is this gap that unions wanted to close down by attaining a 100% increment for markers, Mugwena Maluleke, secretary general of Sadtu, told court. “We talk about a [salary] gap between those setting the paper, moderating and marking the paper. That gap had been growing and we want to narrow it,” Maluleke said.
But Pretorius sought to prove throughout the hearing the agreement “in fact doubles” this gap. This was because the nature of the agreement was such that examiners, moderators and translators would get further increases to the 100% of 2008. His arithmetic, which the unions’ representative rejected, argued translators alone would score an “astounding” 700% hike.
This “dramatically increases the gap, and not narrow it”, Pretorius told Maluleke during cross examination. But Maluleke disagreed, saying “the agreement will not widen the gap, but will narrow it”.
Nazir Cassim, senior council for the unions, told the court his calculations showed “in fact, the gap has been narrowed”.
Pretorius continued to question union leaders if they found it plausible that the department agreed willfully to the agreement. “A 700% increase for translators? There’s no conceivable explanation for that, correct? It’s clearly an error,” Pretorius put it to Naptosa executive director Henry Hendricks, whose reply was a “no”.
But Pretorius pressed on: “Clearly its enforceable. Do you accept that there’s no money to pay for it? There’s no budget.
“There’s no money after signing it, there [was] no money before signing it,” Pretorius told Hendricks.
In exchange, Hendricks jested that “our contention is that it shouldn’t have been signed if the person who signed it knew there was no money”.
However, Hendricks admitted the staggering increment for translators is uncanny. “Would you agree that the increase of 700% is bizarre?” Pretorius quizzed him, to which he responded, “Yes, it is bizarre."
Pretorius told the court Soobrayan, who was not involved in the negotiations, was given a different document from what was agreed in the Education Labour Relations Council. He signed in April 2011, but only told unions of the supposed error in November of that year. Soobrayan is now facing an internal disciplinary hearing over signing the agreement.
Pretorius will bring three witnesses employed by the department to prove signing the agreement was an error but neither Soobrayan nor Minister Angie Motshekga will appear to give evidence.