Government's decision to reopen schools with businesses, not a coincidence: Mmusi Maimane's lawyers

The government’s decision to reopen schools at the same time as businesses, was not a coincidence but a plan to relieve parents of their duty to care for their children so they could assist in its main objective to “reopen the economy”.

This is One South Africa Movement leader Mmusi Maimane’s argument before the Pretoria high court.

Maimane and his organisation, as first and second applicant respectively, are challenging the reopening of schools under level 3 of the lockdown, which came into effect on June 1.

They are also challenging the country’s move from level 4 to level 3 of the lockdown.

The matter was set down for hearing on Thursday and Friday.

President Cyril Ramaphosa, basic education minister Angie Motshekga and co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma are among those cited as respondents.

In court papers, Maimane’s lawyers argue that the government's decision to move from level 4 to 3 was an “irrational, illegitimate and unconstitutional” exercise that tramples on the right of children and working people.

“In light of the paramountcy of the rights to life and the interests of children, this is clearly an illegitimate, irrational and unconstitutional exercise of executive power. It is in breach of both section 7(2) and section 1(c) of the constitution.

“This explains why 1 June 2020 was the date of implementation for both impugned decisions. It also points to a cynical, ulterior and irrational motive and deliberate strategy to potentially sacrifice the lives of working people to achieve the real goal of “opening the economy”,” Maimane’s lawyers argue in court papers.

“It is not a coincidence that schools reopened but part of the plan that the reopening of schools would coincide with the general reopening of the economy. The purpose thereof was to free up workers from their duties to care for their children so that they could assist in the main objective to “reopen the economy”.

According to Maimane’s lawyers, the measures taken by the government in response to the national disaster brought about by the Covid-19 pandemic, resulted in the “prima facie” violations or threatened violations of the rights of people and citizens enshrined in the Bill of Rights.

“Given the common-cause definition of the pandemic and the fact that its spread is necessarily sensitive to human movement and interaction, the measures taken to achieve the “reopening of the economy”, including but not limited to the reopening of schools, necessarily threaten the right to life, the right to human dignity, health and education, to mention a few”.

The easing of lockdown rules, the lawyers argued, posed a threat to preventing infections, deaths and saving lives.

“It is incumbent upon the state to devise means to reopen the economy which are less restrictive upon life, dignity and equality.

“The impugned conduct of the respondents cannot be constitutionally justified, more particularly in that: the infection and death rates, currently and at the time of the relevant decisions, show very rapid and exponential growth as compared to the period when more restrictive measures were imposed by the respondents ...”

The lawyers contended that there was no credible evidence that the health infrastructure and facilities had been sufficiently capacitated to cope with the current and, or anticipated spike in Covid-19 cases.

“Unless the power to promulgate the decision to shift from level 4 to level 3 can be shown to have been exercised 'only to the extent necessary', it must be declared irrational, accordingly invalid and set aside.

“When faced with the difficult and stark choice between prioritising saving dying people and saving a dying economy and despite its clear constitutional duty to the contrary, the South African government has chosen to save the economy, even if it means neglecting its constitutional obligations.”