A law has no effect until it is published in the Government Gazette.
This is one of the legal arguments presented by the DA to challenge the legality of President Cyril Ramaphosa’s announcement that public schools would close from 27 July to 10 August.
“The presidential announcement and the Cabinet ‘decision’ it communicates has not been published in the Gazette. As such, it has no legal effect and the applicant is entitled to a declarator to this effect,” the opposition party argues.
Ramaphosa made the announcement five days ago, and there is still no sign of a gazette to legally institute the directive.
Initially, the party said it would wait for the regulations to be gazetted, but backtracked on Tuesday and filed an urgent court application.
In a founding affidavit submitted by DA MP Belinda Bozzoli on behalf of the party, she argues that this has become a “disturbing pattern” on the side of executive decision-making, where announcements would be declared “law” in the absence of gazetted regulations.
“Attempts to enforce government policy as law prior to publication are deeply unconstitutional and undemocratic. They also are subversive of the rule of law.”
The disturbing patterns, according to the party, were recognised on multiple occasions in the government’s decision-making process regarding Covid-19 regulations – from the sale of hot foods by supermarkets, the ban on cigarettes and alcohol, and education regulations that were sometimes promulgated or changed at the eleventh hour.
The decision to close schools came after pressure from teacher unions and student representative body, Cosas, to shut SA’s schools amid the country’s Covid-19 peak.
This was followed by consultations by Minister of Basic Education Angie Motshekga with various stakeholders within the education sector, to determine whether schools should close or remain open.
Bozzoli further argued that the decision to close schools is irrational because buses and minibus taxis are currently allowed to run at full capacity for short trips and people may gather in limited numbers in places of worship, funerals, work and entertainment.
“Indeed, children may do all these things and yet they are not permitted to go to public schools. There is no rational basis for this differentiated treatment.”
The MP was referring to the announcement that the closure applied to public schools only, leaving private schools to continue with classes.
She contends that if the government genuinely believes schools pose a significant risk for the spread of the virus when compared to full taxis or casinos, it would close all schools and not just public schools.
Elijah Mhlanga, spokesperson for the department of basic education, said the regulations will be gazetted on Friday 31 July. He said the department will respond to the court application, which they have been given until noon 0n 6 August to do.
The DA is also seeking an order declaring that speeches and statements announcing government policy do not have the force of the law.
Alternatively, the party argues, to the extent that the presidential announcement is or reflects a decision to close schools, the decision must be declared unlawful, reviewed and set aside by the court.
“The presidential announcement is a legal nullity; alternatively it is clearly unlawful and deserves to be reviewed and set aside.” DM