The Western Cape Education Department (WCED) believes it is not acting against a national directive by allowing Grade 7 and 12 learners to return to schools.
“The 1 June opening date was gazetted this past Friday as the date for Grade 7 and 12 learners,” said Kerry Mauchline, spokesperson for WCED Minister Debbie Schafer.
“The national minister confirmed in her briefing that schools that are ready can proceed with the orientation of learners.”
Mauchline also highlighted that the National Education Collaboration Trust (NECT) confirmed that the Western Cape is ready to go back to school.
The WCED expected that not all Western Cape schools would reopen – either because they were not at a suitable state of readiness in terms of safety protocols, or because they were closed for cleaning if there had been a confirmed case of COVID-19 at the school.
“We will not open any individual school that does not have the required safety measures in place,” reaffirmed the WCED.
WCED vs SAHRC
While reports have surfaced that the South African Human Rights Committee (SAHRC) plans to take the WCED to court over the reopening of schools, Schafer said that she had not received any court papers.
However, to Schafer’s understanding, the SAHRC’s issue with the WCED is that it is willing to allow some schools to return while others cannot, as the SAHRC believes it will give those who return an unfair advantage.
“I find it incomprehensible that a body that is constitutionally mandated to protect human rights, of which education is one of the most fundamental, wants to challenge a province that is acting in accordance with the Minister’s request to get schools ready for 1 June, which has been gazetted,” said Schafer.
“I would have thought they would focus on the provinces that have not complied in order to ensure that the learners get back to school as soon as possible.”
Schafer also said that the argument that poor learners will suffer is nonsensical.
“The poor learners are suffering now. Wealthy learners are continuing with learning from home, where they have the resources to do so,” said Schafer.
“The argument is equivalent to saying that if a car has a flat tyre then we must make all other tyres flat, rather than fix the flat tyre.”
The latest Government Gazette
While Mauchline refers to the Government Gazette published on Friday 29 May, it is worth noting that a new gazette was published on 1 June.
However, this gazette also lists 1 June as the return date for Grade 7 and 12 learners.
This Government Gazette also inserts the following into the regulations:
(1A) A school may be permitted to deviate from the phased-in return to school in respect of specific Grades or dates, as contemplated in subdirection (1): Provided that such school –
- (a) complies with the minimum health, safety and social distancing measures and requirements on COVID-19, referred to in the Directions and the Regulations; and
- (b) applies prior to implementing such deviation, on a form that substantially corresponds with Annexure B, to the Head of Department responsible for education in a province, for approval of such deviation.
This gazette, therefore, seems to substantiate the WCED’s stance, although it is in stark contrast with what the DBE has announced to the public.
In a press release published on Sunday 31 May, the DBE said that schools would only open on 1 June for school management teams (SMTs), teachers, and non-teaching staff.
“The date on which all learners have to report back to school is the 08 June 2020,” said the statement.
This was reiterated by Minister Motshekga in her speech to the public the next day.
The Government Gazette is the binding document
Wits School of Law Professor Stuart Woolman said that in his view, a policy announcement must be gazetted before it has the force of law.
“Otherwise, any announcement by a political actor regarding some aspiration would magically become ‘law.’ That cannot be true,” said Woolman.
“So if the national DBE hasn’t officially shifted its position, as a matter of law, then the WCED cannot be understood to be acting in violation of extant laws or regulations.”
However, Moolman said that the WCED seems to be taking advantage of the general state of uncertainty around schooling, and noted that reports indicate teachers are resistant to returning before 8 June.