Lockdown Level 4: Urgent court application to stop schools reopening struck off roll

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The Polokwane High Court in Limpopo has struck an urgent application off the roll that sought to prevent the Department of Basic Education from reopening schools under Level 4 of the national lockdown.

The application was lodged by the Tebeila Institute for Leadership, Education, Governance and Training and the African Institute for Human Rights and Constitutional Litigation.

The court said that it lacked the jurisdiction, and no order was made regarding costs.

At a briefing last week, Basic Education Minister Angie Motshekga outlined plans to protect children once schools reopened. No clear guidelines have yet been given on when this will be.

The Tebeila Institute of Leadership, Education, Governance and Training, and the African Institute for Human Rights and Constitutional Litigation believe the Department of Basic Education's Covid-19 sector plan is unconstitutional.

The plan, among others, suggested that pupils in Grade 7 and 12 resume classes on 1 June, 2020.

However, advocate Marius Oosthuizen, for the department, first challenged the application on the basis that it lacked jurisdiction, urgency and added that the applicants had no locus standi - the right or capacity to bring an action or to appear in a court.

Oosthuizen argued that the matter should have been brought in the Pretoria High Court, in whose area of jurisdiction the office of the minister and the department was located.

He further argued that all the relevant actions, such as the decision to reopen schools and the public announcement by the minister on 30 April, 2020, took place in Pretoria.

The applicants' lawyer, advocate Shadrack Tebeila, insisted, among others, that the Polokwane High Court did have jurisdiction over the matter because its judgment could be implemented countrywide.

After arguments, and an adjournment of just over three hours, Judge Gerrit Muller struck the application off the roll for lack of jurisdiction. He, however, agreed that the matter was urgent.

He commended the applicants for bringing the case before the court.

"The seriousness of the Covid-19 pandemic required that drastic measures be taken to protect lives. 

"The effect of the pandemic, if unchecked, can be catastrophic."

According to the applicants' court documents, education authorities were using children as guinea pigs to test whether it was safe or not "to go back to the normal day-to-day running of the business in the country".

"We believe you can't keep parents at home to prevent the spread of Covid-19, while sending innocent children to school in order to save the academic year," the applicants said.

However, in his answering affidavit filed with the court, the department's director-general, Mathanzima Mweli, described the applicants' assertion as "outrageous" and "astonishing". 

He said the applicants were driven by commercial interests in bringing the matter to court.

"Clearly, in an effort to promote their own commercial interests, they elected to bring this application in their own name, instead of assisting the concerned parents - if ever there were concerned parents.

"With all due respect, I fail to understand why the parents who allegedly requested the applicants to bring the urgent application in the public interest could not do so themselves, and why they did not bother to provide the applicants with confirmatory affidavits," Mweli said.

He further showed how the department had planned to implement measures in schools should they reopen on 1 June, 2020. School management teams will be required to return on 11 May, 2020, for preparations.

But Tebeila told the media outside the court the fact that the applicants were allowed to be heard showed they had locus standi.

He said the matter was likely to be taken to the Constitutional Court on an urgent basis.
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