The DA wants the Pretoria high court to order that Monday’s announcement by President Cyril Ramaphosa that public schools close has no legal effect in the absence of gazetted regulations.
If the court does not agree with this, the party wants the decision reviewed, set aside and declared unlawful.
Public schools around the country were closed for four weeks on Monday, but there are still no regulations gazetted on the closures or how the academic year will proceed. The move to close the schools until August 24 will push the academic year beyond the end of 2020.
Basic education department spokesperson Elijah Mhlanga said on Tuesday that the government is in the process of compiling the regulations.
The DA originally said it was waiting for the regulations to be gazetted, but on Wednesday it lodged its application, which now includes clarity on whether the announcement by Ramaphosa, to the extent that it purports to contain or communicate a binding law, is a nullity.
DA MP Belinda Bozzoli, in an affidavit to the court, said she was advised that a law can only have legal effect once it has been published in the Government Gazette. “The presidential announcement, and the cabinet ‘decision’ it communicates, has not been published in the gazette. As such, it has no legal effect, and the applicant [the DA] is entitled to a declarator to this effect,” she said.
Bozzoli said the presidential announcement is merely the most recent of what is becoming a “disturbing pattern” under the executive’s response to the Covid-19 pandemic — that of “public officials handing down diktats before they are gazetted (or without gazetting them at all) and expecting citizens, organisations and other spheres of government to obey them.”
She said it appears that various members of the executive, including Ramaphosa and basic education minister Angie Motshekga, are under the impression that the Covid-19 pandemic permits them to legislate by decree, without properly exercising statutory powers through publication in the gazette.
“I respectfully submit that it is necessary for this court to disabuse them of this notion,” Bozzoli said.
‘No rational basis’
As to the actual decision to close schools, Bozzoli said it is “deeply irrational”, especially given that buses and taxis are allowed to run at full capacity for trips of up to 200km; and that people may gather at places of worship, funerals, work, cinemas and visit supermarkets.
“Indeed, children may do all of these things. And yet they are not permitted to go to [public] school. There is no rational basis for this differential treatment,” she said.
“In addition, the presidential announcement only purports to close public schools. Private schools are free to open. If government genuinely is of the view that schools pose a greater risk for the spread of Covid-19 than, say, crowded taxis or casinos ... it would have closed all schools and not just public ones.”
Bozzoli said if there was a properly gazetted decision by the basic education minister or co-operative governance and traditional affairs minister, the DA could have raised all its complaints through a challenge to that direction, but because there was only a speech it is neither necessary nor possible for the court to consider the substantive irrationality and unreasonableness of the decision.
She said that, for now, the DA’s complaint is limited to two grounds: the decisionmakers having no power to take the decision; and any powers that existed not being properly exercised because no decision was gazetted.
“The presidential announcement is a legal nullity. Alternatively, it is clearly unlawful and deserves to be reviewed and set aside. And yet the president and the minister [Motshekga] appear to be under the impression that the president can close every public school in the country by making a speech. This is not how things work in a constitutional democracy,” Bozzoli said.
The DA reserved its rights to raise additional review grounds in the future.
Listen to Prof Nic Spaull, a senior researcher at Stellenbosch University, and associate professor Maximus Sefotho at the University of Johannesburg, on the impact of school closures.
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