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Covid-19 and directionless diktat: Balancing the integrity of the legal system and the best interests of pupils


Jameelah Omar is a Public Law lecturer at the University of Cape Town, specialising in criminal law and criminal procedure.

The sudden need to put extraordinary lawmaking measures in place to deal with the Covid-19 disaster has resurrected a very old phenomenon in our legal system.

The term ‘dictator’ in modern times has acquired the colloquial meaning of a tyrant or totalitarian leader, but the history of this term has a special meaning in the context of our Roman-Dutch legal history. 

In times of great need or when disaster struck, the Roman legal system crafted the role of a dictator – a unique office given the honorific title of chief magistrate. This dictator would be vested with powers to make law by decree or mere announcement in times of crisis, albeit temporarily for six months. As you can imagine, given the scope for abuse, this role was eventually whittled away by the ostensibly more democratic senate.

Given the speed with which this present Covid-19 crisis arose, it was understandable that the government needed to adopt the extraordinary powers buried within the Disaster Management Act of 2002. Instead of the slow-moving legislative process in Parliament, the process of lawmaking was pushed effectively into the hands of the executive. Under the hastily gazetted Disaster Management Regulations relating to Covid-19, various ministers were given wider powers than they might otherwise have had. These included those delegated to the minister of basic education to open or close all schools through a directive published in a Government Gazette. 

Ordinarily, the lawmaking process requires a draft piece of legislation or regulations to be gazetted to encourage wide consultation. Legislation may go through several rounds of amendment before it is tabled in Parliament to be passed. Regulations published under a particular statute are similarly expected to be subject to public consultative processes. The purpose of consultation is not just to meet the rule of law requirement that laws should be publicly accessible and as widely known as possible, but also to allow for the inclusion of different perspectives on the differential impact of the proposed new law.

And yet, increasingly we have seen that new regulations and directions are announced first and promulgated second. Such announcements may be a way of publicising the law, but cannot be mistaken for making the law. 

During 2020 there were at least five significant sets of directions that changed the start and end dates for schools. These were on 29 May, 1 June, 23 June, 29 June and 2 August

As each of these updates to the opening of schools were in directions, they were not gazetted for comment. This may have been necessary in the early stage of Covid-19 disaster, but even the dictator in Roman law was only meant to have a fixed period of six months to deviate from proper lawmaking processes. 

There are differing views on whether schools should be closed during this time. But it is certainly a complex decision. If schools remain closed, children suffer socially and academically, and for many, even their health and safety are at risk. Parents and guardians will struggle to continue working – many have already suffered economic harm during 2020. If schools open it is not clear whether this will stymie the attempts to flatten the curve and reduce pressure on the health system – these are the reasons given for the delay in opening. 

But while the decision itself (to open or not to open) has been widely debated, how the decision is made has not been. In a constitutional democracy, how law is made and implemented is a vital area for concern – some might even say it is more important than the decision itself, because wide consultation provides checks and balances on the exercise of state power.  

The Department of Basic Education should be commended for its attempts to consult with interested groups, including teacher unions and independent associations of schools. However, this kind of consultation is not the same as the formal process of consultation that would normally be followed when there is a change to the law. 

The decision to delay school opening was (ostensibly) publicised by a statement read at a media briefing by the department on 15 January by Deputy Minister Reginah Mhaule and live-streamed. In it, she says “the Council of Education Ministers, in conjunction with the National Coronavirus Command Council (NCCC) and Cabinet, has taken the decision to delay the reopening of both public and private schools with (sic) two weeks. This includes private schools that have opened already. They will need to postpone their reopening to a later date.” 

Public schools were initially to open on 27 January, so there is probably enough time for the amended start date to be gazetted as a direction. 

However, ordering schools that have already opened to close again means the deputy minister, the department, the NCCC, the unions and just about everyone else involved in this “decision”, are under the illusion that the statement on 15 January is “law” and can be enforced as such. While the statement by Mhaule didn’t say schools must close or stay closed “effective immediately”, that is the implication. Thus, there is the (mis)understanding that a statement read out to the media can be enforced as though it is of legal authority.

In the absence of gazetted directions, under what authority are schools not permitted to open?

The fact that the announcement is not “law” is perhaps not as misunderstood as one would think. This is apparent from Gauteng Education MEC Panyaza Lesufi’s statements on Twitter, as reported by the media, that the province was requesting that the department ensure the two-week delay “is gazetted so the decision becomes law”. 

Very few people would disagree that in 2020, speed and the ability to act urgently were necessary. Equally, there can be no denying that the Disaster Management Act of 2002 gives the authority to the minister of cooperative governance and traditional affairs (Cogta) to gazette regulations necessary for carrying out the objects of the act. 

However, this may be the moment to question the continued use of directions under the Disaster Management Act Regulations as an appropriate form of lawmaking. This double delegation of authority (from the Cogta minister to other ministers) should be used cautiously, if at all. 

The refrain “we are living through unprecedented times” is not as true in 2021 as it was in 2020. We have now had 10 months within which to adjust to the continued – but no longer unexpected – issues that surround the coronavirus pandemic. 

Children are negatively affected generally when they have no access to schooling. Whether their right to health is being prioritised is a matter of weighing up one set of constitutional rights (right to education) against another (right to health), as required by Section 36 of the Constitution.

Protecting children’s right to health by closing schools during this time still means they are losing valuable time for academic and social stimulation, which will have long-term impact on their development. The least we can do is make sure that children’s needs are protected by making decisions in a procedurally sound way and consulting widely, including with groups that represent the interests of children. Failure to do so infringes upon the integrity of the legal system – and the best interests of the child. DM


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