DA files application for High Court order declaring President’s school closure announcement unlawful and unconstitutional

28 July 2020

Note to Editors: Please find attached English soundbite by Prof Belinda Bozzoli MP.

The Democratic Alliance (DA) has today filed an affidavit with the North Gauteng Division of the High Court to seek an order declaring the President’s announcement last week on the closure of schools as unlawful, unconstitutional and not binding.

President Cyril Ramaphosa’s announcement that public schools would close for the duration of four weeks has not yet been published in the Government Gazette. The DA is therefore of the view that the announcement has no legal effect and that schools should therefore technically not have closed as there is no legal requirement for them to do so.

The truth is that the word of the President is not law, the law is the law.

Gazetted regulations contain carefully described powers, rights and obligations. They also clearly specify which regulations or directions they repeal or amend. In contrast, an announcement, such as the President’s is not aimed at describing rights, obligations and powers – it is usually a political document aimed at justifying a position or influencing public opinion.

South Africa is a Constitutional Democracy and not an authoritarian state. The Executive is, therefore, not permitted to legislate by decree without properly exercising statutory powers through publication in the Gazette – as this ultimately undermines the rule of law.

Should the Court take a view that President Ramaphosa’s announcement reflects a decision by either Cabinet or himself to close schools and that this decision is binding – the DA has sought an order declaring the President’s announcement unlawful and asked that it be set aside. This is because neither the President nor Cabinet, have the legal powers to close schools.

The Minister of Basic Education, Angie Motshekga, cannot claim that the decision to close schools was hers either because the press release in which she welcomed the announcement, expressly described the decision as one by Cabinet.

The DA maintains that the closure of schools was a rash and politically motivated decision. It was not a decision taken in the best interest of the academic progress of learners.

The closure of schools is by far the least effective strategy to prevent the spread of Covid-19 and will have devastating consequences for years to come.

Issued by Belinda Bozzoli & Nomsa Marchesi, 28 July 2020