Court grants Bhisho’s wishes

The Eastern Cape education department has won its first legal skirmish against the SA Democratic Teachers’ Union in its decade-long battle to redeploy thousands of excess teachers to understaffed schools.

Grahamstown High Court Judge Murray Lowe has ruled that the application – in which the department is asking the court to declare as unlawful and unconstitutional the union’s refusal to participate in the redeployment exercise – can be heard on an urgent basis.

Lowe also found that acting head of provincial education Sizakele Netshilaphala does have the legal standing to bring the urgent application.

Sadtu had argued that Netshilaphala did not have the standing to bring the application as her department was still under the administration of its national counterpart and the power to litigate therefore vested in Minister Angie Motshekga.

But, in a rather odd twist, Lowe has found that the provincial education department was no longer under administration and, in fact, had not been since 2014.

While Motshekga has made recent public statements suggesting she believes the Eastern Cape department to still be under her administration, Lowe said this could not be the case.

Advocate Geoff Budlender, SC, arguing on behalf of Netshilaphala, had contended that the so-called Section 100 intervention, recorded in a Memorandum of Understanding in 2011, had been for a limited duration of three years and that this had never been extended by cabinet. The intervention must therefore have expired in May 2014.

Lowe agreed and said if the period for the administration exercise had been extended beyond the three years it would have been well known to all, particularly Netshilaphala.

She says in court papers that Sadtu has, over many years, consistently and deliberately thwarted the department’s attempts to properly allocate adequate teachers to all schools.

Netshilaphala suggests the union had consequently prevented many children from receiving a constitutionally guaranteed basic education.

She wants the court to declare as unlawful and unconstitutional Sadtu’s instructions to its members not to participate in the department’s attempts to redeploy its 4200 excess teachers to understaffed schools where they are needed.

However, the department failed to convince the court to urgently interdict Sadtu from disrupting, interfering with or obstructing the provision of education at schools after threats from Sadtu provincial administrator Sindisile Zamisa to “disrupt everything after these elections so they will know who they are dealing with”.

Lowe said the threat was non-specific and did not warrant an urgent interim interdict.

The national education department had not responded to e-mailed questions at the time of writing.