By Mariëtte Reyneke
Since the first case of Covid-19 was reported in South Africa, the question of how to manage the country’s schools has been top of mind.
Schools were closed in March and, as part of a phased approach, began returning from June. The risks associated with the pandemic mean the situation could change at any moment.
There has been much debate about whether schools should be open at all. Some have pointed out that children’s rights – to dignity, life, equality and education, among others – must be considered throughout. While this is correct, in the legal sense, the situation is slightly more complex.
This can be illustrated by at least two South African court judgments. Drawing from these findings, there are a few basic legal principles to consider when it comes to children’s rights.
First, whenever a decision needs to be taken that concerns children, as with the closure of schools, all relevant factors must be taken into account. The best possible decision needs to be taken for the specific circumstances.
Second, when children are affected by the decision, the decision-maker needs to do a separate or additional investigation into the impact of the decision on the interests of the children concerned.
The decision-maker must then take all reasonable steps to minimise any negative impact on the best interests of children.
This is of paramount importance in terms of the Constitution.
One would have expected a department responsible for 13 million children to prioritise those children’s best interests. But it seems as though the political will to comply with the constitutional obligation to optimise children’s best interests is lacking.
This can also be seen in the general state of public schooling, from overcrowded classrooms to a lack of water and sanitation at many schools.
And yet the country’s Constitution, as well as several court rulings, offer clear guidelines for how children’s best interests should be managed and prioritised.
In 2007, in an important case, the Constitutional Court set a clear precedent in S v M on how to ensure that decision-makers give effect to children’s best interests.
The case dealt with the question of whether a single mother found guilty of fraud – and who had four children – should be sentenced to direct imprisonment or correctional supervision.
Courts normally consider a few factors in determining an appropriate sentence: the interests of the community, the offender’s personal circumstances (including whether or not they have dependants) and the gravity of the offence. The central question in this case was how to act in the best interests of the woman’s children – and, by association, the children of all offenders.
There will no doubt be more tough decisions around Covid and schooling in the coming months, or even years.
The Department of Education has to consider postponing exams, closing schools where there are Covid cases, and how to catch up on lost class time.
In doing so, it must do everything possible to go the extra mile for pupils and minimise the impact of the pandemic.
This may include, but not be limited to, making sure schools have access to clean water and proper sanitation, and allowing schools to be flexible in managing the impact on the children at that particular school.
Reyneke is an associate professor in education law, University of the Free State.
The Star