Mmusi Maimane loses court bid to block schools reopening

This was fundamentally an argument over lives versus livelihoods, and which should take precedence. More specifically, it was about whether schools should be allowed to reopen in the midst of a pandemic.

Mmusi Maimane and his One South Africa movement brought a case before the Pretoria High Court to block the government from reopening schools on the grounds that this would imperil the health of the country.

Government, with trade union Solidarity admitted as a friend of the court, took the view that the state had an obligation to balance the health of citizens with their right to earn a living. The court agreed, and threw out Maimane’s case.

Maimane’s team accused the government of irrationally, unlawfully and unconstitutionally abandoning measures aimed at effectively combating the Covid-19 epidemic, and replacing them with “constitutionally non-compliant measures” which are likely to result in the preventable deaths of human beings, especially the poor and vulnerable.

Emotionally charged

A full bench of the court found the language used by Maimane at times “highly charged and emotional”, while court decisions had to be founded in law, says the judgment.

An expert affidavit in support of government’s decision to reopen schools by Professor Salim Karim, chair of the Ministerial Advisory Committee on the Covid-19 epidemic, says “flattening the curve” means reducing the number of infections at peak, and reducing the number of infections at any given time to a level that healthcare services will be able to cope with.

“Although it is important to minimise the total number of infections over the course of this pandemic, the greatest risk to life currently posed by Sars-CoV-2 stems from the devastating collapse of the healthcare system,” says Kalim’s affidavit.

The government argued that the strict lockdown was successful in achieving its objectives. At the end of the five-week lockdown period, the “doubling rate” of the infections was about two days, but by the end of the lockdown, it was 15 days. This means the number of infected persons doubled only every 15 days, giving a clear indication of how the lockdown had managed to flatten the curve.

In his national address on April 23, President Cyril Ramaphosa said while a nationwide lockdown was probably the most effective means to contain the spread of the virus, it could not be sustained indefinitely. The economic impact of a sustained lockdown rendered it unsustainable.

People need to eat and earn a living.

A balance has to be struck between, as the first respondent put it, “lives and livelihoods”.

Balancing act

The court case provides some interesting insights into government’s decision-making during lockdown, and the need to balance the fight to stop the spread of the virus with the need to get the economy going again, with each month of lockdown resulting in a 3% contraction in the economy.

The Ministerial Advisory Committee argued that it is possible to save both lives and livelihoods. “The argument that we either ‘fight the virus’ or ‘reopen the economy’ is a false tension.

“With good planning, implementation and enforcement, both can happen concurrently,” according to the committee’s statement before the court.

Under Alert Level 3 announced on April 29, regulations were eased to allow people to travel to and from work and to exercise between 06:00 and 18:00. Learners were also allowed to leave their homes to attend school “once these are opened”, provided protective measures such as face masks and social distancing were applied. Schools were reopened on June 1 for Grade 7 and 12 learners, allowing roughly two million learners to resume classes, with other grades to be reintroduced in due course.

Read: Yes, it’s time to send kids back to school

The court found that in relaxing the lockdown to Alert Level 3, there was no evidence that the government had violated its constitutional duty to protect the lives and health of the population.

There was also no evidence that the healthcare system was overburdened as a result of the virus, as claimed by Maimane and One SA. The relaxed lockdown regulations contain sufficient flexibility to declare hotspots where viral infection rates are higher than elsewhere, and so declare stricter lockdowns in these areas.

Threat ‘cannot be avoided’

“The Covid-19 [pandemic] threatens the lives and health of the populace. However, all available evidence indicates that whatever measures are adopted, the threat cannot be avoided,” reads the judgment.

“The need to reopen the economy is an important government purpose that is also aimed at safeguarding other fundamental rights. It is also crucially important to ensure that the government has the fiscal resources available to it to meet its constitutional obligations to provide for, among other things, the realisation of socio-economic rights.”

Maimane’s team asked the court to prevent the staggered reopening of schools based on the readiness of each school. They want all schools to reopen simultaneously when they reach the required state of readiness, and said the state had not shown itself ready for reopening.

Learner needs

Hubert Mweli, Director-General of the Department of Basic Education, argued for the state that any delays in reopening schools impeded children’s’ developmental needs, deprived them of access to the school nutrition programmes, and in many cases meant parents had to stay home to look after them. The continued closure of schools was likely to deepen inequalities between learners at affluent schools, who were able to offer online learning during the time of closure, as opposed to those at poorer schools. Evidence was also presented that children are at very low risk of contracting or spreading the virus.

Read: Closing school may cause some kids a lifetime of harm

Daniel Eloff, attorney with Hurter Spies, which represented Solidarity, says the timing of this case worked in favour of government and Solidarity, as we now have several months of data regarding Covid-19 infection rates.

“We initially saw a batch of cases challenging the lockdown, and these were bound to fail as no one knew what impact the virus would have on the country.

“Now we have a better idea, but I suspect the window for bringing new cases is likely to close until about November this year as we are again seeing infection rates rising. This is nevertheless an important case because it is crucial to allow children to return to school in a healthy and responsible way. We cannot continue to keep schools closed.”