In a nutshell: SA law and whether your child must go back to school

Yesterday (May 19) Minister of Basic Education, Angie Motshekga announced that school for Grade 7 and 12 pupils would resume on June 1.

By that time, it would have been more than two months since any South African pupil had set foot in a classroom due to the lockdown which came into effect on March 26. This lockdown was implemented by the government in an attempt to curb the spread of the Covid-19 pandemic.

Many have questioned whether the decision to reopen schools was in the best interests of the country’s children. Acknowledging the uncertainty faced by parents, the department agreed that children may be kept home, but made it very clear that these children must be registered for home schooling.

Legal expert, Mtho Maphumulo, an associate and litigation attorney at Adams & Adams, weighed in on the Constitutional law relevant to this enquiry.

“Furthermore, it explicitly prohibits risking the child’s well-being, physical or mental,” he said.

Children also enjoyed the rest of the constitutional rights enshrined in the Bill of Rights, including the right to life (Section 11), a safe environment (Section 24 – the right to an environment that is not harmful to their health and well-being), human dignity (Section 10), and the right to equality (Section 9 – the right to equal protection and benefit of the law).

Maphumulo acknowledged the importance of ‘flattening the curve’, a term used to describe a public health strategy aimed at slowing the spread of Covid-19 during the pandemic.

“This was done (among other things) to protect the interests of children who are, by their nature and youth, vulnerable,” he said. He conceded that several pertinent questions had been raised, including whether a return to school would increase the risk of infection, and how this would be managed.

Maphumulo explained how the law required the government to approach all decisions about when and how children should go back to school. “Due consideration of the law and public policy must be given, particularly because this 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 parents, governing bodies and the government to make best possible decisions on their behalf. Failure to do so may have catastrophic social and legal implications.”

He added that, as a constitutional democratic State, the decision made would have to be measured against the values, spirit, objects, purpose, and provisions of the Constitution.

Various provisions of the Children’s Act were pertinent to the subject. The objects of the Act, amongst others, were to give effect to the Constitutional rights of children.

Section 6(2) stipulates that all decisions in a matter concerning a child must (making it mandatory) respect, protect, promote, and fulfil the child’s rights as set out in the Bill of Rights, the best interests of child standard; respect the child’s inherent dignity.

Section 9 further emphasises 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.

According to Maphumulo, the public’s views and norms needed to be given due attention as this issue affected almost every South African household.

“Many parents have made their concerns regarding the perceived “rushed” re-opening of schools known. Some went as far as to say that they are happy to have their children repeat a grade next year, and want their children to return to school only once they are sure it is safe to do so. Some however, particularly parents of grade 12 children, are inclined to want to have their children back at school to salvage what remains of the school year.”

“This 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. The Constitutional Court considers the right to life paramount. Without it, no other right can be actualised.”

Many decisions during the lockdown period had been made without any consultation. Maphumulo said this was understandable and legally justifiable, given the urgency and the current state of disaster.

Regarding the re-opening of schools, however, he believed that government should “consult (to the extent possible) with some stakeholders, including governing bodies and other interest groups”.

He explained that this was in line with Section 10, 6(3) and 6(4) of the Children’s Act. “The necessity of the consultations is fuelled by the socio-economic discrepancies in the country. Whilst some households may have facilities allowing for e-learning, 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,” he concluded.

ALSO READ: Parents can decide not to send their children back to school

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