Bobby Soobrayan, the embattled director general of the department of basic education, was on Wednesday described in court as someone who does not peruse documents with far-reaching financial implications for the department before signing them, but "simply rubber-stamps".
In a dramatic submission to the Labour Court during the case brought by teacher unions, Gerrit Pretorius, the department’s senior counsel in the matter, said Soobrayan did not even have authority to sign the disputed collective labour agreement of 2011 to double salaries of matric exam markers.
"Where’s evidence that Mr Soobrayan had authority to sign the agreement, which is R750-million more than what [the department] had in the budget?” Pretorius asked to murmurs from members of the South African Democratic Teachers’ Union (Sadtu) seated in the gallery.
Pretorius said the fact of the matter is that there is nowhere where Minister Angie Motshekga could be proven to have given Soobrayan authority to sign the agreement. Only Motshekga had powers to sign an agreement with such extensive financial implications, he said. "The point is could anyone had believed that Soobrayan an authority to sign for R750-million?
"Soobrayan didn’t have authority to sign the agreement," Pretorius said. “It’s an unauthorised act by Mr Soobrayan."
He said Soobrayan had no powers because Motshekga had published a government gazette a month earlier that determined examination-related tariffs should be adjusted by the CPIX and not any cumulative percentage.
Never enforced
Soobrayan signed the collective agreement in April 2011 after year-long negotiations, but it was never enforced and the department now contests its validity. Unions, led by Sadtu and including the National Professional Teachers' Organisation of South Africa and the Suid-Afrikaanse Onderwysersunie, have taken the department to the Labour Court to compel it to increase the remuneration of teachers who mark grade 12 scripts 100%, in accordance to the negotiated agreement.
Judge Garth Hulley, who is hearing the case, asked Pretorius if it was his submission that Soobrayan did not read the agreement properly. "If he simply rubber-stamps whatever he’s given, he must accept the consequences," Hulley told Pretorius.
"He must,” Pretorius replied. He said despite that Soobrayan relies on what his staff to update him about assigned work duties, "the ultimate responsibility remains his".
Hulley heard that Soobrayan and the director in his office, Paseka Njobe, confirmed the accuracy of aspects of the agreement with Simone Geyer, who was chief negotiator for the department, over phone. Geyer was attending her father’s funeral in Port Elizabeth, Eastern Cape at the time. "The evidence is they didn’t properly read the agreement," said Pretorius.
The department wants the court to accept that Soobrayan was under the impression that he signed an agreement that adjusted marking tariffs by CPIX and by 100%. Therefore, Pretorius is arguing, the paper was signed by error and should be declared null and void.
'Unthinkable'
Soobrayan’s failure to satisfy himself he was signing the correct agreement also came up strongly when Nazir Cassim, senior counsel for the unions, delivered his arguments. “It’s unthinkable that he’d not read the document and is not aware of its content,” Cassim told the court.
Hulley said “even if he did read the document, but merely rubber-stamp[ed it], it’s incorrect”. Cassim interjected: “Then he must face the consequences. He has no one to blame but himself.”
Added Hulley: “The evidence [before the court] is that [Soobrayan] rubber-stamps whatever is given to him.
Cassim said it was also improper that Soobrayan did not come to testify at the hearing why he signed the agreement. But Pretorius defended him on this, saying it was not necessary that Soobrayan appeared.
Soobrayan is set to face an internal disciplinary hearing for signing the agreement. Geyer, who testified on Tuesday, who said the agreement was a result of errors from both negotiating parties, has already undergone a disciplinary and was slapped with a final written warning.
Dismiss application
Pretorius asked Hulley to dismiss the application with costs to the unions. He maintained it was not enforceable because it was expensive and it was an error on both sides. While unions negotiated for doubling of markers’ remuneration, the agreement also inadvertently notched increments for examination officials who got 100% increases in 2008, Pretorius argued.
Cassim urged the court to uphold the agreement: "They say it’s expensive, but they don’t say it’s impossible [to implement]".
"I admit they [the department] made a terrible mistake, but it’s their mistake."
Judgment should not be expected in the next month, Hulley said. He has oral submissions of three days and numerous affidavits from both sides to consider. “I want to go through the evidence very carefully,” said Hulley.