Decision to reopen schools not in the best interests of children, Mmusi Maimane's lawyers argue

The basic education department’s decision to reopen schools must be assessed against the best interests of the child, lawyers for One South Africa Movement leader Mmusi Maimane have argued.

Maimane is challenging the reopening of schools under level 3 of the lockdown in the Pretoria high court.

He is also challenging the move by the country from level 4 to level 3.

The department's decision, the lawyers argued, breached the fundamental right enshrined in section 28(2) of the constitution that all decisions affecting children must be made in their best interests.

“It is glaringly apparent that the reopening of schools, in the absence of plans that are practically possible to implement, is not in the interests of children,” Maimane’s lawyers argued in court papers.

The lawyers said the respondents, who include President Cyril Ramaphosa, basic education minister Angie Motshekga and co-operative & traditional affairs minister Nkosazana-Dlamini-Zuma, had failed to demonstrate that they have met their own standards demonstrating school readiness.

“Consequently, they fail to establish that the danger has been averted.

“Even if it were to be accepted that children are less likely to be infected (which is disputed), the notion that they are low transmitters of the virus is illogical and senseless,” the lawyers argued.

Motshekga’s postponement of the reopening of schools from June 1  to June 8  demonstrated the state of unreadiness which still prevailed, Maimane’s lawyers said.

“The contradictions by the various stakeholders about the state of readiness warrants the intervention of the court. On the state’s version it is ready, despite the absence of the implementation plans. The education unions have done an about-turn and now agree the state is ready.

“The parents who signed the petition and the applicants dispute this contention.”

It is the lawyers' contention that the reason "the reopening of schools" had to coincide with "the reopening of the economy" was to free working-class parents to return to work and generate profits.

The decision to reopen schools, according to the lawyers, ignores the socio-economic context of present day South Africa and the historical legacy of apartheid on the impact of public schools, “an impact which can be felt, even after 26 years of democracy, and which has created the ‘school unreadiness problem' and cast "serious doubt" on the ability to implement the proposed mitigating measures.

“The effect of this is that, despite the remedial work that has been done during the past two and a half decades, the marked disparity in the infrastructure in formerly black public schools remains prevalent in the present day.

"One such example is the lack of adequate sanitation which resulted in the tragic death of five-year-old Michael Komape, who notoriously died in a pit latrine toilet at his school in Ermelo. Even though this particular event transpired in 2014, the narrative remains even today," the lawyers argued.

Judgment has been reserved.