Over the past few years, a core group of public-interest organisations has litigated a string of cases against the South African government to fight for improved education provisioning in under-resourced schools.
Cases have focused on improving school infrastructure, requiring the delivery of textbooks, desks and chairs and ensuring that there are adequate numbers of teachers in schools.
In essence, each of these cases has sought to compel the state to provide an essential component of the right to a basic education and ensure that pupils can enjoy a quality education that may enable them to prosper.
In many instances these legal interventions have produced tangible results. For instance, litigation has ensured the promulgation of norms and standards for school infrastructure. Also, even though new rounds of litigation or appeals are ongoing in almost all these cases, improvements in education provisioning, despite being far from perfect, are nevertheless discernible.
This is evident, for example, in the Accelerated School Infrastructure Delivery Initiative, known more widely by its acronym, Asidi, and in the improved delivery of textbooks in Limpopo.
The litigation has also provided useful insights into some of the structural problems that underlie poor education provisioning. Many of these relate to failures of governance regarding planning, budgeting and management. These insights have informed renewed civil engagement and monitoring in the furtherance of good governance and delivery.
Perhaps, though, one of the most fraught and complex of all of these ongoing legal disputes is the teacher post-provisioning saga in the Eastern Cape. Post-provisioning refers to the process whereby the provincial department of education declares, every year, the number of state-paid teaching posts that are to be allocated to a public school.
The number of teacher posts allocated is determined according to a formula that weights certain specified factors, such as class size, the range of subjects a school offers and the poverty of the particular community in which a school is situated.
The Schools Act then provides that school governing bodies may establish extra posts and appoint additional teachers. The funding for these posts is generated through school fees and other fundraising initiatives. Schools catering for poor communities, in particular no-fee schools, generally do not benefit from this provision and of necessity have to rely solely on the teacher allocations that the state makes in terms of its post-provisioning policy.
The post-provisioning case is a particularly difficult one because, apart from the governance failures that beleaguer all areas of education provisioning, especially in the Eastern Cape, the matter of teacher allocation is further compounded by an underlying labour dispute. At the heart of the dispute between the government and teacher unions is the failure to move surplus teachers from some schools to other schools where they are desperately needed.
Since 2012, the Legal Resources Centre (LRC) in the Eastern Cape has spearheaded the post-provisioning litigation, on which the Mail & Guardian has reported extensively.
According to the most recent figures the LRC has provided, there are about 3?200 vacant teacher posts affecting some schools, and almost 4?500 excess teachers at other schools in the province. The implication of this is that a significant number of classrooms in understaffed schools remain without a teacher, whereas other schools are overstaffed.
The LRC’s latest court application, initiated in June, seeks to enforce the effective implementation of post-provisioning on the basis that, as its papers before court say, it “is the only legal mechanism available to deploy and redeploy teachers. It is accordingly essential to the ‘right-sizing’ or rationalisation of the education sector and the establishment of a more equitable and effective educational system.”
Yet, even though for the past few years posts for public schools have been declared, the government has failed to implement post-provisioning – either by not appointing permanent teachers to declared posts or by not paying the teachers who have been appointed.
The effect of this for many public schools in the Eastern Cape has been that some have paid for teachers with monies from school fees that would have otherwise been allocated for other essential school activities.
As noted in the latest LRC application (in June): “Schools have spent literally millions of rands paying teachers who ought to have been paid by government. This has resulted in schools cutting other expenditures but has produced massive uncertainty in school planning and budgeting processes.”
On the other hand, schools with no sources of alternative income, such as no-fee schools, have had to function without teachers or, in some instances, have relied on teachers who have worked without pay or have been paid only transport costs to and from school.
In 2012, in the case Centre for Child Law and Others vs Minister of Basic Education and Others, the Centre for Child Law and seven school governing bodies represented by the LRC launched an application compelling the government to implement the 2012 teacher post establishment and declare the 2013 teacher post establishment.
It also asked the government to appoint temporary teachers to all vacant posts by a specific date, make all temporary appointments permanent, pay teachers from the date on which they assumed duty and reimburse governing bodies that had been forced to pay the salaries of temporary teachers from their own budgets. A settlement agreement was reached in favour of the applicants and made an order of court.
But the state failed to comply with the order to complete the teacher appointment process, citing a failure to move the “teachers in excess” as the reason.
This noncompliance resulted in at least two more rounds of litigation and settlement agreements that were made orders of court. The applicants in this latest round of litigation argue that there has never been sufficient compliance with these court orders.
Moreover, as a result of these cases, the LRC was approached by schools from other parts of the Eastern Cape that were experiencing similar difficulties in respect of post-provisioning.
In the latest case (again in June), the LRC has therefore embarked on an “opt-in” class action litigation as a more “systemic remedy”. Through a prior court process in March, the LRC obtained the permission of the court to publish – through the media and other sources – a notice to all schools in the Eastern Cape, inviting them to join the existing 32 schools in claiming the reimbursement of unpaid teacher salaries.
To date, 90 public schools have come forward and given notice to opt in to the class action litigation. The claims of these schools amount to slightly more than R81-million.
These applicants want the government to repay monies that the schools have spent on paying teachers that ought to have been paid by the state. They also demand that the government permanently appoints teachers to allocated posts at schools and pays them, as it is required to do.
This class action reflects a drastic and innovative attempt to address the desperate situation of teacher shortages in many schools in the Eastern Cape. Yet, although the litigation may ensure ongoing pressure to solve the problems of post-provisioning, ultimately the impasse concerning the movement of surplus teachers requires a political commitment from the state and teacher unions to resolve it.
Indeed, until then, those who will remain prejudiced by this status quo will be the pupils and the teachers who are not being paid. For pupils to enjoy their right to a basic education, it is crucial that there is a teacher in front of every classroom, teaching.
Faranaaz Veriava is a human rights lawyer, based part time at public interest organisation Section27. She writes in her personal capacity