THE Western Cape government on Wednesday seemingly buckled under pressure, giving an "undertaking" to keep open four of the 18 schools that are opposing their closure.
The provincial education department announced in October that 20 out of the 27 schools initially earmarked for closure would be shut down at the end of this year.
Reasons given included ageing infrastructure, dwindling pupil numbers and poor results.
But 18 of the schools, with the South African Democratic Teachers Union, approached the Western Cape High Court for an interim interdict to stop the closures, and for the department’s decision to be reviewed and set aside.
They argued, among other issues, that Western Cape education MEC Donald Grant did not "fully consult" before deciding to close the schools and had thus violated pupils’ constitutional right to basic education.
The case was heard on Tuesday and yesterday by a full bench of the court and an order will be made tomorrow morning.
In a day of high drama at the court on Wednesday, Eduard Fagan, representing Mr Grant, received a note from his counsel in the middle of his argument.
The note, from "the premier (Helen Zille) and the MEC (Mr Grant)", which was read out to the judges, stated that the province would undertake to keep Beauvallon Secondary, ValPark Primary, Protea Primary and Lavisrylaan Primary schools open subject to the final review being heard "relatively quickly" by the court.
These are urban schools, whereas the majority set to be closed are farm schools.
Court proceedings had to be adjourned briefly, with Judge Siraj Desai questioning the timing of the announcement by the provincial government.
A visibly irate Judge Desai said the "concession" by the premier and MEC "was absolute political gamesmanship". "Why wasn’t such a concession made at the beginning?" he asked. "I resent my court being used for political gamesmanship."
He said that there should be no conditions attached to the deal. "It is either you are making the concession or not."
Mr Fagan told the court that it was "not a concession" but an "undertaking".
"We received a note late into the case from the provincial government agreeing to keep the four schools open subject to a review being heard quickly," he said.
Earlier, Mr Fagan argued that the closure of the schools was in the best interests of the pupils as some of the institutions were "hopeless".
He said closing the schools was not a denial of the right to education, "but, in fact, the intention is for these learners to have a better education".
Mr Fagan also argued that there was no legal precedent for a court to "judge a decision of this kind".
However, Judge Desai said it was debatable whether closing down schools would actually improve educational outcomes.
He asked if the department had tried to fix the problems identified before taking the "guillotine" decision to close the schools.
"It is ironic that these schools were built during the apartheid era and then are closed down in a democracy," Judge Desai said.
Norman Arendse, representing the schools, argued yesterday that an interdict should be granted for all the schools because the "proper procedure" had not been followed in coming to the decision to close down the schools.
"If due process was not followed, it impacts on our substantive rights (such as) those of access to basic education," he said.
Mr Arendse further put it to the court that the "concession" made by the provincial government, to keep four schools open subject to a review being expedited, should have an effect on the case.
He said the interdict should be granted with costs because "even if four schools were to be kept open, it would represent a substantial victory for the applicants".
Judge Desai said that "ideally" the matter should be resolved outside the courts as "this was not an appropriate forum".
"In light of the urgency of this matter, we will make the order on Friday ... education is a very sensitive matter in this country," the judge said.