Court dismisses Mmusi Maimane's bid to keep schools closed

The high court in Pretoria on Wednesday dismissed an application by Mmusi Maimane's One South Africa Movement (OSAM) which sought to set aside the decision to move from lockdown level 4 to level 3 and to reopen schools.

Central to the application was the progression of the coronavirus pandemic in SA and the government’s response to it.

OSAM and Maimane accused the government of not doing enough to protect lives as it eased lockdown restrictions.

But the court said the easing to level 3 was necessary to safeguard against a potential economic catastrophe. It said the ministerial advisory committee's (MAC's) view was that it was possible to protect both lives and livelihoods, without choosing one over the other. The MAC was formed to help steer government’s response to the global Covid-19 pandemic.

“The government has been guided by this expert view. To label this move as putting profit before lives, as [OSAM and Maimane] have done, is to ignore the complexities of the issues involved, and the response to such issues.”

The court said it had never been the government’s stance that lockdown will be eased in direct proportion to the rate of infection, as suggested by Maimane and OSAM.

“On the contrary, government’s response has been guided by the extent to which the capacity of the health-care services can accommodate the number of infections.”

The court said Maimane and OSAM had told the court it was not correct that the health-care system had been sufficiently capacitated to deal with the rising numbers of infections. They said the “numbers speak for themselves”.

“It is not clear what numbers the applicants refer to in this regard. They provide no evidence upon which this court can test their declaration that the health-care system is not coping,” the court said.

The court said the easing of lockdown to level 3 was not cast in stone.

“A key feature of the MAC’s advice to the (government), and of the amendments to the regulations that went along with the easing to level 3, has been the adoption of the concept of hotspots.

“This gives (the government) the flexibility to further tighten Covid-19 response measures in circumstances where health-care services, in a particular metro, province or district, cannot cope with the infection rate.”

The court said the adoption of the hotspots methods also permits government to direct additional resources to those areas to deal with increased infections.

“It is clear from all the above that the applicants have failed to show that in deciding to move to alert level 3, the respondents violated their constitutional duty to protect the lives and health of the populace,” said a judgment by judge president Dunstan Mlambo and judges Jody Kollapen and Raylene Keightely.

In June, the Constitutional  Court dismissed the direct challenge by Maimane for the same relief. In its order, the highest court in the land said OSAM had not made out a case for direct access and thus the application should be dismissed as it was not in the interests of justice to hear it at this stage.