Following the President’s address on 23 July 2020, the re-closing of public schools for four weeks has left most questioning why public schools are forced to take the four week break and private schools are not. Although grade 12’s will only be taking a week break and grade 7’s two weeks, this blog is focused on all the other grades and school as a whole. Private schools are granted the freedom to decide whether to follow suit and close for four weeks or to stay open.

The decision to close public schools for four weeks and not private schools as well means that regulation 36 no longer applies to all schools. This means that a public school learner’s right to access to education is being limited. For such a limitation of rights to pass as constitutional, according to the Bill of Rights, it must be reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality.

Learners from private schools are indirectly being given a further advantage over public school learners because private school learners are being granted the opportunity to continue with their academic year whilst public school earners must await the phased reopening in four weeks.

The financial advantage which private school learners have over public school learners has already been playing to the advantage of private school learners because they have been able to attend classes electronically during the period that the lock down regulations have been in effect, which is not a privilege most public school learners would have – either due to a lack of electronic schooling being provided, or due to financial constraints.

The rationality test requires that the exercise of the power be rationally related to the purpose for which the power was conferred. Based on this test, and in light of the fact that approximately 12.5 million learners in less affluent areas will be attending school to participate in feeding schemes, there appears to be no reason why it is rational to close only public schools. The distinction in the application of regulation 36 of the DMA has now introduced a level of uncertainty into the enforcement of regulation 36. In addition, and until Regulations were published on 3 August 2020, public schools were not prohibited from being open. While these regulations have now been published, section 29 of the Bill of Rights gives ‘everyone’ the right to basic education, not only those who can afford private schooling. The constitutional question remains.

This government decision puts an irrational condition on how, when and to whom lockdown regulations apply. This is counterproductive to the furtherance of effective governance and the never ending quest for equality within society. Every child in the country enjoys the same constitutional rights, and enforcing restrictions on the reopening of schools selectively, contravenes these rights.