The South African Human Rights Commission (SAHRC) says it will take Basic Education Minister Angie Motshekga and Western Cape Education MEC Debbie Schäfer to court over the way the return to schools during the Covid-19 lockdown is being handled.

SAHRC commissioner Andre Gaum told News24 that Motshekga has until 14:00 on Wednesday to provide more details legally on back-to-school Covid-19 regulations.

The commission argues that as it stood, current regulations discriminate between schools that can and cannot comply with regulations on screening, sanitisation and physical distancing. Schäfer meanwhile, has until 14:00 on Tuesday to respond to concerns that the Western Cape has reopened the majority of their schools, while other schools around the country have postponed by a week.

If they do not, they will head to court.

Western Cape schools going by gazette

On Tuesday, Schäfer's office said her decision to open schools on Monday stands, and that reports say 98% of schools in the province are ready. This came after the national education department made a last-minute U-turn on its decision to open for Grades 7 and 12 on Monday, citing unreadiness in large parts of the country. The gazetted regulations, however, say the opening date for the phased return of school children is still 1 June.

"The decision for the Western Cape to open on 1 June 2020 stands – as was gazetted on Friday, and in the updated regulations gazetted last night [Monday]," Schäfer's spokesperson, Kerry Mauchline, said.

"Initial reports indicate that over 98% of our schools reopened yesterday [Monday]. We would like to thank all our principals and teachers that have prepared for the return of learners to schools, and which have safely received learners yesterday," she said.

"We have received countless reports of orientation taking place, following screening measures on arrival at schools."

Mauchline said one amendment had already been made on Monday night, and the date for the return was still 1 June.

"The first regulations gazetted on Friday accidentally left out Grades 1 and 2 from the list of dates for the return of learners, so it needed to be amended. The date for Grade 7 and 12 remains 1 June 2020," she said.

The new date for Grades 1 and 2 is 6 July.

Schäfer also tweeted: "Must say never in my life did I expect to be asked to give an undertaking not to teach children. And nogal by the human 'rights' commission."

Wait two more days

The national department of education says the concerns raised by the SAHRC will be addressed when new regulations are gazetted on Friday. Motshekga's spokesperson, Elijah Mhlanga, said Motshekga had already stated that the regulations were rushed and there were problems with it. On Monday during a media briefing, Motshekga apologised for the confusion.

However, he said, the amendments that deal with the SAHRC's points had already been drawn up and were ready to be gazetted on Friday. Mhlanga reiterated President Cyril Ramaphosa's statement that parents who were not comfortable with sending their children to school would not have to do so.

However, parents must register their children for home schooling, otherwise they will be marked as absent after 10 consecutive days of non-attendance, which could trigger consequences.

"They [the directions] will be published this week. In fact, the minister even said it in her speech yesterday [Monday]."

Issuing a circular to schools would take too long, and it would be overtaken by the gazette. He said the SAHRC's ultimatum does not make sense.

"If you can just wait for two days, on Friday morning the gazette will be there," he said. He told News24 the new amendments due on Friday would deal with all of the problems raised by the SAHRC. As for the Western Cape, Mhlanga said provinces have some powers, and noted that Schäfer and Motshekga were in talks over the issues in the province, which included the higher infection rate.

SAHRC's case

The SAHRC believes Sections 4.2 and 4.3 of the back-to-school Covid-19 regulations discriminate between schools that can and cannot comply with Covid-19 regulations on screening, sanitisation and physical distancing.

Gaum explained Section 4.2 states that schools that are ready to handle the symptom and temperature screening, distancing and sanitisation requirements could return on 1 June.

Section 4.3 states that schools that are not ready, do not have to return on 1 June. The commission believes this is not fair to pupils at schools that cannot comply, through no fault of their own, and this discrimination is unconstitutional. Therefore, the SAHRC has asked Motshekga to indicate by 14:00 on Wednesday whether the regulations will be amended by Friday to state that alternative arrangements will be made for schools struggling to comply.

Until all schools were treated equally, the commission believed all schools should be closed.

"Schools should remain closed until this is amended," said Gaum.

Regarding Schäfer's instruction for schools to return on Monday, the commission wants her to comply with Motshekga's national order that schools stay closed until 9 June.