The Democratic Alliance has taken government to court again – this time over the controversial closure of the country’s schools this week.
The party in a statement on Wednesday said, the four-week closure – as announced by President Cyril Ramaphosa in a national address last Thursday night – had yet to be published in the Government Gazette.
“The DA is therefore of the view that the announcement has no legal effect and that schools should therefore technically not have closed as there is no legal requirement for them to do so,” it went on.
The party’s Belinda Bozzoll labelled the decision a “nullity” in papers filed in the North Gauteng High Court this week.
“An announcement by the President is not a law and cannot create rights and obligations in law,” Bozzoli said, “Nevertheless, the Minister of Education has treated the announcement as if it were handed down on stone tablets. Provincial education MECs have been forced to run their departments as if this speech was law.”
Bozzoli was careful to point out that the case was not about “the constitutionality, or even the wisdom, of any of the substantive measures the national executive has taken,”
“It concerns process and how the national executive lacks the capacity to enact laws, whatever their content might be,” she said.
She emphasised government policy had to be gazetted before it became the law.
“Attempts to enforce government policy as law prior to publication are deeply unconstitutional and undemocratic,” she said.
Nonetheless Bozolli pointed to government’s move to close schools again, as having “elicited criticism from various sectors of society.”
This criticism, she went on, included that “the closures would further diminish the amount of effective education learners would receive this year.”
“This would affect poor learners the most severely, as they have the least access to remedial catch-up measures and computers and airtime for e-learning,” Bozzoli said.
The closures also “placed an unexpected additional burden on many parents,” she added, who “either had to arrange childcare at the last minute, or postpone returning to work.”
“They were given a single weekday’s notice,” Bozzoli said. “Further the decision was made “in the face of scientific evidence that children are far less likely to contract COVID-19, to fall seriously ill, or to transmit the disease to others.
“And that schools have not proven to be a significant contributor to the spread of the virus,” she added.
Bozzoli said the decision had also been criticised for appearing to be “a last-minute capitulation to pressure from teachers’ unions”.
“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 without more,” Bozzoli charged,
“It appears that various members of the executive (including the President and the Minister) are under the impression that the Covid-19 pandemic permits them to legislate by decree (or announcement, or press release, or tweet), 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”.
The party wants the closure of schools declared “unlawful, unconstitutional and not binding”.
The case has been brought on an urgent basis and is expected to come before the court for hearing soon.