Turmoil Over Schools’ Continued Closure: Legal & Public Policy Considerations

The coronavirus outbreak saw many countries around the world going into a lockdown to combat the spread of the virus. South Africa adopted the same strategy to “flatten the curve”. The President announced early closure of the schools even before the announcement that the country will be going into a complete lockdown. This was done to protect the interests of children who are, by their nature and youthfulness, vulnerable. The restrictions which were originally imposed have since been eased a bit – to allow for economic activity. To circumvent a resurgent of new cases, the government adopted a “phased-in” resumption of economic activity – i.e. some sectors/industries will resume activity based on the level under which they are classified.

Intensifying debate has been around the re-opening of schools – with some opting for a phased-in re-opening and some totally opposed to the idea of the re-opening of schools. Many pertinent questions have been raised on this subject, for example: whether all schools are adequately equipped to minimize children’s exposure and risk; if schools open, which grades will be preferred and why; the risk to the teachers who will, if infected, infect their family members; whether the government have enough personnel and financial muscle to reach out to all the schools with the necessary equipment needed; if schools do not open now, how can the school year be rescued, etc. To date, there has not been a definite decision by the government as how to go about the re-opening of schools.

In making a decision, a due consideration of the law and public policy must be given particularly because this topic relates to children – the majority of whom do not have much say; do not fully appreciate the gravity of the situation and rely greatly on the parents; governing bodies and government to make best possible decisions on their behalf. Failure to do so may have catastrophic social and legal implications.

Whatever decision the government reaches, as a constitutional democratic State, the decision made will have to be measured against the values, spirit, objects, purpose, and provisions of the Constitution. Our Constitution jealously guards the interests and protection of the children hence the Section 28 which is specifically dedicated to them. The said provision states that a child’s best interests are of paramount importance in every matter concerning the child.

Further, it impliedly prohibits risking the child’s well-being, physical or mental health, etc. In addition, children enjoy the rest of the constitutional rights enshrined in the Bill of Rights including right to life (Section 11); safe environment (Section 24 – right to environment that is not harmful to their health and well-being); human dignity (Section 10); right to equality (Section 9 – right to equal protection and benefit of the law), etc.

Furthermore, various provisions of the Children’s Act are pertinent to this subject. The objects of this Act, amongst other, is to give effect to the Constitutional Rights mentioned above and to ensure protection of children. Section 6(2) stipulates that all decisions in a matter concerning a child must (making it mandatory) respect, protect, promote, fulfil the child’s rights set out in Bill of Rights, the best interests of child standard; respect the child’s inherent dignity.

Section 9 further re-emphasize that the interests of the child are of paramount importance and that in every matter concerning a child, care, protection and well-being of a child, the standard that the child’s best interests are of paramount importance must be applied. Furthermore, the best interests and protection of every child is echoed by our common law – this is evident in our plethora of past judgements handed down by our courts.

The views of the public and the norms of our society (public policy) need to be given due attention particularly when dealing with a situation that affects almost every household – regardless of its status. Many parents have made their concerns regarding the “rushed” re-opening of schools known. Some went insofar as saying that they will be happy to have their children repeating a grade next year and want their children to return to school once it is safe to do so. Some, particularly parents of grade 12 children, are inclined to have their children back to school so as to salvage the school year.

The balancing of interests in this instance becomes crucial because, on the one hand, you are risking the lives of children, and, on the other, you are promoting and compromising everything for realization of the constitutional right to education. It is at this juncture where becomes necessary to have regard to the utterances of the constitutional court in the case of Makwanyane wherein the importance of right to life was engraved and, it was said that every other right flows from this particular right. In this context, if a child is allowed to risk his/her life and go to school, s/he may be risking every other right s/he has.

Many decisions that have been made during the lockdown period have been made without any consultations. This is understandable and legally justifiable given the urgency and the current state of disaster. Regarding the re-opening of schools, however, it may be sagacious for the government to consult (to the extent possible) with some stakeholders including governing bodies and other interests’ groups. This is in line with Section 10, 6(3) and 6(4) of the Children’s Act. The necessity of the consultations is fueled by the socio-economic discrepancies in the country. Whilst few households may have facilities allowing e-learning; etc., it may be important to hear possible pragmatic solutions that may cater for the majority of households. Obviously, extensive consultations may be impractical and unrealistic but the question of at least minimal but meaningful consultations may be relevant if and when court cases arise from the “rushed” re-opening of schools.

The “rushed” re-opening of schools without proper planning and preparation may lead to many children being infected with the virus. Many have argued that, based on the studies from the Western countries, children are more resistant to the virus although they can be carriers. This should be treated with caution particularly because the resistance (or lack thereof) is influenced by various socio-economic factors. Poverty in South Africa is raging, and many children suffer from malnutrition. This then means that majority of South African children, if infected, may have to endure long-lasting health implications or, death may result. Also, they will probably spread it to teachers and their families. This may result to massive health issues for many people whose immune system and health are already compromised. For the government, it may result in many court cases being brought forward if any negligence/oversight can be pinned on it. It is for these reasons that the government and, Department of Education specifically, will need to have due regard to the legal and public policy considerations. Whilst the education of children is pivotal, safety and protection, particularly at this point in time, takes preference.

If there are appropriate measures to safeguard children’s health and/or alternative measures allowing learning to take place remotely, then there is no legally sound reason why schooling should not resume. Whatever decision the government reaches, it must be able to demonstrate that it is in the best interests of every child, failing which it may open floodgates of court cases.

Mthokozisi Maphumulo
Mtho Maphumulo
Associate | Litigation Attorney