Parliament should return to work, not schools

Traditionally, an essential service is a service which cannot be interrupted so as to avoid endangerment to life, personal safety and health.

Interpreted for the purpose of a national disaster, essential services are those services which cannot be interrupted to avoid endangerment to life, health, safety and the economy.

By its very nature education is, therefore, not an essential service and cannot be considered an essential service, whatever the circumstances.

The International Labour Organisation (ILO), along with many countries across the world, do not define education as an essential service.

This should guide us on the return to work protocol and criteria in SA.

All essential services, namely the police, health workers, and many essential service workers, are working hard during this period, except for parliament despite it being an essential service.

Why should children and educators be placed at the frontlines, while parliamentarians are not requested to physically return to work yet?

Parliament is declared an essential service through the Labour Relations Act and is required to continue functioning at all times.

Since parliamentarians have not been called up yet, are the lives of parliamentarians — many of whom are 60 years and older — worth more than the children, the future of our nation?

I have listened to many health experts saying in the media that as long as there is social distance in classes and learners sanitise, they can go back to school.

Why are we not applying the same principle to parliamentarians?

Can the parliamentarians guarantee that township and rural schools — known for being overcrowded, with multiple grades in one class — will be safe for children to return to, and maintain the sanitation and social distancing requirements standing between them and this deadly epidemic?

Are we distinguishing between the rich and the poor?

Section 28(2) of the Constitution of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the children of SA.

Surely, the child also has a right to live, in as much as the child has a right to education.

A child cannot enjoy any constitutional right if he or she is dead. In Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC), the Constitutional Court held that Sec 28(2) imposes an obligation on all those who make decisions concerning a child “to ensure that the best interests of the child enjoy paramount importance in their decisions”.

Statutes must be interpreted, and common law developed in a manner which favours protecting and advancing the interest of children.

So, what does this make of government’s decision to send children to school? Is it in the best interest of the child?

If it is found not to have been, would the courts consider personal liability from those who took this decision?

Are we willing to pay this price by letting our education system resume during a national disaster before parliament — an actual essential service — physically returns to work?

Experts advocate for the return of children to schools, without even a whisper of politicians returning. This is odd.

● Advocate Luvuyo Bono is chair Relations of the Council Education (ELRC), Labour the Essential Service Committee (ESC), and an adjunct professor at Nelson Mandela University.

This article is written in his personal capacity.