We are living in fluid and difficult times. The “rona”, as my students colloquially refer to it, has rocked our world in ways that will not be fully understood for a very long time. Yet, it is not premature to raise serious concerns about its implications. In this article, I do so through the lens of the law and with a focus on the negative impact on the current cohort of learners, and especially those at ECD level (early childhood development). 

At this stage, our small children learn primarily by doing — by clambering, socialising and “sponging”. In other words, they develop by “taking it all in”, using all five of their physical senses and through their related fundamental interpersonal, physical and intellectual experiences. 

There is a growing body of literature on the short- to long-term effects of the pandemic on ECD learners, but the bulk of it comes from the medical and socioeconomic perspectives. For a glimmer of where medicine is at, in July this year the American Academy of Pediatrics (AAP) published an article with the following apt headline: “The AAP strongly advocates that all policy considerations for school plans should start with the goal of keeping students safe and physically present in school” (my emphasis). 

As for the socioeconomic implications of rolling school closures and lockdown-living in the disparate South African context, Nick Spaull of the Department of Economics at Stellenbosch University wrote a thoughtful piece in Daily Maverick in May 2020. Having examined the evidence, he concluded that, “[y]oung children being ‘locked up’ at home when there are few health benefits to themselves or society is bad for the wellbeing of children, bad for parents and bad for the economy”. 

Of course, over a year down the line we have seen diverse variants of the virus and increasingly complex, polycentric public policy concerns play out. Given this, to my mind, the primary question is what are the relevant first principles of our constitutional framework that can help us navigate this treacherous minefield?  

My contribution to this debate is not a critique of the so-called “lockdown regulations”, nor of government’s approach to regulating in this vexed field. It is also not a comparator of the position for public versus private schools, with the related question of what amounts to a “public place” within the meaning of the regulations. Though, I do note with dismay that this key term is still not defined, despite the fact that the “mandatory protocol” for mask-wearing necessarily hinges on persons being “in a public place” (regulation 34). 

Rather, this contribution is a reflective analysis of the constitutional compass for all law and conduct, including exercises of private power where applicable (see s 8(2) of the Constitution), with a view to guiding schools as they endeavour to protect and advance the best interests of the child.

So let me begin with my conclusion, namely that “proportionality is a constitutional watchword” and so a balanced approach is called for. Our courts have told us as much on many occasions, and indeed a simple perusal of our supreme law makes this self-evident. 

In our culture shift from one of authoritarianism under apartheid to one of justification under a constitutional order, a careful balancing is inevitably required — balancing competing rights and interests, balancing individual versus communitarian needs, balancing regulatory purposes with their impacts, and so on. 

As the proverbial saying goes, sledgehammers should not be used to crack nuts. My claim is that where schools adopt a one-size-fits-all approach to pandemic regulation, they may be acting in a disproportionate manner that flies in the face of our constitutional value system — and, potentially, fundamental rights. What is this value system?

Section 7(1) of the Constitution proclaims the Bill of Rights to be the “cornerstone of democracy in South Africa” and to this end, it enshrines the rights of all people in our country and “affirms the democratic values of human dignity, equality and freedom”. Indeed, this triptych of values frames our Constitution — they are the first founding values cited in section 1 of the Constitution, and they underpin both the rights and governance endeavours of South African constitutionalism. 

Human dignity plays an especially important dual role as “value” and distinctive “right” (in section 10), and it underpins the realisation of the whole cohort of rights in chapter 2. Our Constitutional Court in the seminal case of Dawood emphasised that this right to human dignity has both individual and communitarian elements. The latter speaks to ubuntu as a key notion which permeates our Constitution and rightly emphasises that we enjoy, and experience, our humanity — and thus potential to “self-actualise” — through our connections and interactions with our fellow humans. 

This is particularly so for small children as they find their place in the world by forming human connections, while simultaneously shaping their unique identities. Where schools disproportionately disconnect these little people through, for example, rolling closures or excessive adherence to overly strict (or, at least, insufficiently nuanced) “safety protocols”, they potentially infringe the human dignity of the learners. 

On the rights of learners, section 28 of the Constitution is the first specific right to bear in mind. It contains the animating best-interests-benchmark in section 28(2): “[a] child’s best interests are of paramount importance in every matter concerning the child.” 

The first thing to note here is that this imprimatur is focussed not on “children” as a collective, but rather on each individual child. A one-size-fits-all policy that loses sight of distinctive needs or circumstances may thus fall foul of this. For example, where paediatric advice indicates that a small child has a speech impediment, or re-breathing issues, strict adherence to mask-wearing by the child at all times may violate the call for an individual touch in child-related matters. 

The second point to flag is that section 28(c) grants every child the right to “basic nutrition, shelter, basic healthcare services and social services”. It is now well-documented in the literature on point that for many children, the school is often the place that provides these essentials, and so when a child is forced to stay at home, s/he may be deprived not only of her/his right to learn, but also a daily meal and social support. 

The home is not always the safe haven it should be, especially in our country riddled as it is with domestic abuse and deep and widespread inequalities in the rudiments of life. 

The second important specific constitutional provision to note is the section 29 right to “education”. Section 29(1) of the Constitution grants everyone the unqualified right to, among others, a basic education, and our courts have indicated that the corresponding duties flowing from this right apply to public and private actors in certain cases. As for the latter, in June 2020 the Constitutional Court in Pridwin, applied public-law standards of procedural and substantive fairness to the contractual relationship between the independent school and the learner’s parents. The court commenced its judgment with a powerful reminder that “[e]ducation is central to every child’s development. It is the key to a better life”. 

Finally, section 31(1)(a) of the Constitution epitomises the communal nature of human endeavour by stating that persons “belonging to a cultural, religious or linguistic community may not be denied the right… to enjoy their culture, practice their religion and use their language”. Take away a child’s schooling and you may just take away all these rights too — and in an unjustifiable manner. 

On the question of justifiability, let me conclude by bringing this piece full circle. Proportionality matters — where we can achieve goals in the least invasive way, we should do so. The “limitations clause” in section 36 of the Constitution makes this apparent; rights in the Bill may be limited only “in terms of law of general application” and to the extent that it is “reasonable and justifiable” determined with reference to factors on both sides of the proportionality scales. 

These include the nature of the right; the importance of the purpose of the limitation and its nature and extent (whether it is particularly extensive or relatively minor in the circumstances); the link between the limitation and its purpose; and importantly, whether there are “less restrictive means to achieve the purpose”. 

So, for example, where for ECD learners, the purpose of reducing the general spread of Covid-19 might still be achieved through less invasive measures than by way of school closures, incessant mask-wearing in every case, and so on, then these avenues should be explored. 

Balance is the order of the day and rigid adherence to fixed policies, without room for exception, flies in the face of this and, therefore, our constitutional ethos. If democracy is as much about giving voice to the majority as it is about protecting the weakest among us, schools — and indeed, government — must be mindful of these first principles and work even harder to achieve the right balance in the interests of our most delicate future endowment — the youngest among us. DM/MC