17 July 2020
Civil society organisations have won an important victory for children’s rights. Photo: Brian Turner via Flickr (CC BY 2.0)
Basic education minister Angie Motshekga and all the provincial education MECs, except the Western Cape, have been found to be in breach of the Constitution for not re-implementing the school’s feeding scheme last month.
North Gauteng High Court Judge Sulet Potterill has now ruled that they must immediately roll out the National Schools Nutrition Programme (NSNP) to all nine million qualifying learners.
In terms of a “supervisory order” granted late on Friday, the Minister and the MECs must report back to the court within ten days with a plan and programme “showing what steps have been taken, what further steps are needed and when they will be taken”, to get at least one nutritious meal to all qualifying children, whether or not they are back at school.
They then have to update the court, under oath, every 15 days after that on progress until the court declares that it is no longer necessary.
Equal Education, Equal Education Law Centre and SECTION27, which launched the urgent application, described the ruling as an “important piece of jurisprudence” because it entrenched learners’ constitutional rights to basic nutrition and basic education through the NSNP.
“It recognises that the constitutional rights to basic nutrition and basic education are inextricably linked…we look forward to examining the plans put forward as well as the progress reports, to ensure that the rights of learners are upheld.”
Judge Potterill was scathing of the ministers and the MECs for raising a “semantic” defence that, since schools had closed due to the Covid-19 pandemic in March and the NSNP had stopped, they had not “refused” to reinstate it.
“The court is not blinded by word choice, but looks to context and the totality of the evidence presented. The order sought is in line with the factual basis set out: The NSNP has not been rolled out to all learners, it must be rolled and should have been rolled out when schools were opened,” she said.
“The programme is a life-saving programme for the poorest of the poor child. It must be saluted.
“While there have been grant reforms (since the pandemic), they have failed to alleviate the plight of millions of people. The affidavits from teachers, learners and parents capture the reality on the ground. They make it clear that hunger is not a problem, hunger is an obscenity.”
Judge Potterill said learners had an entitlement to the daily meal and the Minister and MECs had not justified why the programme had not been again fully implemented.
Funding was not a problem, she said.
“The Ministers and the MECs say they are doing their best and they persist that they are doing precisely what the applicants want them to do without needing judicial supervision.
“Making such a statement under oath when the common cause facts show the contrary is surprising and disturbing,” she said.
The judge said structural interdicts were not granted “willy nilly”. “But the submission (from the applicants) that the department has played fast and loose with the facts is correct.
“The fact that only these court papers spurred on activity to feed hungry children leaves doubt whether on its own, the department will perform.
“There is administrative chaos and confusion in the provinces which requires supervision.”