Schools opening under Level 3: ConCourt rejects Maimane’s urgent application to stop schools reopening

One SA Movement leader and former DA leader Mmusi Maimane.
One SA Movement leader and former DA leader Mmusi Maimane.
Elizabeth Sejake, City Press
  • The Constitutional Court has denied Mmusi Maimane's movement direct access, on an urgent basis, to challenge government's decision to reopen schools.
  • The court ruled that the applicant did "not make out a case for direct access".
  • Schools are expected to resume on Monday.
  • Maimane, in his papers, claimed the government was failing in its "constitutional" and "legal" duty to consult with organisations to ensure meaningful public participation.

The Constitutional Court on Friday denied Mmusi Maimane’s One South Africa movement direct access, on an urgent basis, to challenge government's decision to reopen schools.

It ruled that it had considered the application, but had concluded that the applicant did "not make out a case for direct access". It was dismissed, as it was "not in the interests of justice to hear it as this stage".

The apex court decided not to award costs.

OSA spokesperson Dipolelo Moime said the movement was consulting its legal team to consider its options, and not ruling out approaching the high court to seek an order to suspend the reopening of schools for 60 days, during which government must provide, under direct supervision of a court, proof of the existence of a comprehensive readiness and implementation plan which must preced the opening of any grade.

"We shall not back down in fighting for schools to be safe for students, for teachers and for support staff," he said.

"This particular department must be held to account at every step."

He said the movement respected the Constitutional Court’s decision.

"But it must be clear that the Constitutional Court did not consider the merits of our case, or pronounce on such. The court only considered whether it was the appropriate body to adjudicate the case for inception, and the merits of our case still stand.

Attempts to reach the Department of Basic Education’s spokesperson Elijah Mhlanga were unsuccessful.

Maimane, in his founding affidavit to the Constitutional Court, challenged the government's decision to reopen schools during the coronavirus pandemic. He highlighted poor infrastructure, school overcrowding, staff shortages, sanitation and public transport as the motivation behind his application, arguing for a supervisory relief for Level 4 regulations to be restored, News24 reported.

"We seek to invoke the court's wide remedial powers by seeking structural or supervisory relief stipulating stringent conditions, without which the respondents may not implement any of the Level 3 measures and/or more specifically the reopening of schools for a period of 60 days, during which the constitutional breaches may be cured. In the supervening period, and in order to avoid a vacuum, the Level 4 regulations must be restored," Maimane argued in his papers.


Schools had been scheduled to open this week, but Basic Education Minister Angie Motshekga on Monday said it had been decided that not all schools were at the same level of readiness, and that some were not yet compliant with Covid-19 prevention protocols.

Schooling is expected to resume on Monday, 8 June.

According to Maimane’s court papers, Motshekga did not display a thorough plan as to how schools would be made ready for opening. He also argued that the minister had not informed the country how other pupils - who are learning under trees, tents and dilapidated buildings - would be catered for.

Maimane claimed the government was failing in its "constitutional" and "legal" duty to consult with organisations to ensure meaningful public participation.

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