The concern of the Commission stemmed from the interpretation and application of paragraph 4(2) read with paragraph 4(3) of the Directions issued by the Minister on 29 May 2020, insofar as it impacts on the right to basic education guaranteed by section 29(1) of the Constitution, in that the learners of those schools that are required to remain closed in terms of direction 4(3) of the Directions, by reason inter alia of the school being non-Covid-19 compliant, will be deprived of their constitutional right to basic education. These schools are most likely to be located in poor and underprivileged communities which will further exacerbate the already well-known and deep systemic inequalities that pervade our basic education system.

The Commission had met with the Minister on Sunday, 31 May 2020 to discuss these concerns and the Minister had undertaken to ensure that the Directions would be amended to conform with the Constitution.

The Commission was pleased to observe yesterday that the Minister had postponed the resumption of classes for Grades 7 and 12 until Monday, 8 June 2020, as requested by the Commission in its correspondence to the Minister last week. Following the press conference held by the Minister yesterday, the Commission expected her to amend the date in the Directions accordingly. The Amended Directions issued by the Minister on 1 June 2020 however kept 1 June 2020 as the date for the re-commencement of classes.

The Minister has nevertheless kept to her undertaking to ensure that the Amended Directions address the legitimate concerns raised by the Commission. To this end, the addition of paragraph 4(3A) now places a duty on the relevant education department to make arrangements with a school that is unable to open as contemplated in sub-direction (3), for learners to receive ongoing teaching and learning to ensure that education continues in accordance with the curriculum and that a learner is not disadvantaged by the school not re- opening.

The Commission welcomes this amendment to the Directions. It shall continue to discharge its Constitutional mandate to monitor, protect and promote the realisation of human rights in the country and eagerly awaits the measures the various provincial education departments will put in place to ensure that no learner is left behind or denied the right to basic education as a result of their socio-economic circumstances.

However, the Commission is concerned about the decision of the Minister to keep 1 June 2020 as the date on which learning in schools starts, contrary to the earlier announcements in this regard.

The Commission regards this decision as highly problematic in view of the unfairness of this measure towards learners in our country, especially learners from disadvantaged and poor communities. The Commission reiterates the equal right to basic education of all learners as a matter of critical importance. By keeping the date of 1 June 2020, the Minister has effectively allowed the MEC of Education in the Western Cape Province to deviate from the agreement to have 8 June 2020 as the date when learning can resume for grades 7 and 12 in the country and created a situation where the Western Cape Province takes a separate approach to that of the rest of South Africa.

In view of these concerns and challenges around the readiness of schools to open and for effective learning to take place; the Commission will take the following measures:

1. Request the Minister of Basic Education and her MECs to provide information on all schools that are not ready to open and provide effective learning and the reasons thereof.
2. Request for information on alternative measures instituted to ensure that learners whose schools cannot open under the Covid-19 regulations are not left behind as far as effective learning is concerned.
3. The Commission will monitor schools throughout the country to ensure that effective learning takes place and that no learners are unduly disadvantaged by the inability of schools to open and provide learning.

The Commission will not hesitate to take necessary measures within its mandate and powers, including litigation, if necessary, to ensure that learners are not unduly deprived of their right to a basic education.

In response to the general human rights challenges and concerns in relation to COVID-19 and responses thereto by the government and other stakeholders, the Commission has written to the National Command Council for an urgent meeting between the Commission and the Council to address these concerns and challenges.

Ends 

Issued by the South African Human Rights Commission. 

Gushwell Brooks – Communications Co-ordinator Tel: 082 645 8573This email address is being protected from spambots. You need JavaScript enabled to view it.