One of the major achievements of the South African Constitution is a judicially enforceable Bill of Rights that integrates civil and political rights alongside economic, social, cultural and environmental rights.
Human rights represent the most fundamental freedoms and material goods and services needed by human beings to survive and thrive in society. South Africa’s Bill of Rights recognises that all rights are interdependent, and must be interpreted holistically in order to achieve the foundational constitutional values of human dignity, freedom and equality. However, without effective accountability mechanisms, human rights norms amount to no more than empty promises. As our constitution recognises, the courts are the final port of call for those whose human rights are violated.
On Thursday 2 July, the North Gauteng High Court is set to hear a case concerning the interpretation of the socio-economic rights enshrined in the Bill of Rights, specifically those accorded to the most vulnerable in our society – children living in poverty.
Equal Education and the governing bodies of Vhulaudzi Secondary School and Mashao High School (Limpopo) have launched an application to compel the Minister of Basic Education and the MECs of the provinces to implement the national school nutrition programme (NSNP) in such a way that it provides a daily meal to all qualifying learners.
They have also asked the state to oversee the implementation of the NSNP to all qualifying learners through government filing regular progress reports to the court. The University of Cape Town’s Children’s Institute represented by the The Centre for Child Law at the University of Pretoria has entered the case as an amicus curiae (friend of the court).
Background to the case
When schools closed on 18 March 2020 due to the Covid-19 pandemic, and the lockdown measures taken pursuant to the national state of disaster, the NSNP was suspended. On 8 June, Grade 7 and 12 learners returned to school in line with the phased easing of lockdown measures.
The applicants note in their court papers that various undertakings were given by the Minister, Department of Basic Education and Council of Education Ministers that when learners returned to school on 8 June, the NSNP would be resumed for all qualifying learners, including those whose classes had not yet resumed.
However, in an apparent about-turn, the minister announced that when Grade 7 and 12 learners returned to school on 8 June, only they would be provided with meals. Although the government claims in its legal papers that it is now taking steps to roll out the NSNP to all learners, the applicants contest this.
Together with partner institutions such as the Legal Resources Centre, the applicants have undertaken a rapid survey of schools, which reveals that there is in fact no coherent plan to roll out the programme to all learners, and that “administrative chaos and confusion are widespread”.
The food poverty line is the rand value below which a person would be unable to afford enough food to supply them with the minimum daily per capita energy requirements for adequate health as defined by the WHO (2,100 kilocalories).
The NSNP was introduced by the first democratic government in 1994. It is a flagship programme of which the government can be justifiably proud. As the government noted in a recent report to the UN Committee on Economic, Social and Cultural Rights:
“Daily meals are provided to nine million learners in 20,000 schools through the National School Nutrition Programme. The programme aims to foster better quality education by enhancing children’s active learning capacity, alleviating short-term hunger, providing an incentive for children to attend school regularly and punctually; and addressing certain micro-nutrient deficiencies. School feeding is part of the Integrated Food Security Strategy for South Africa.”
The NSNP has two main objectives.
First, it aims to ensure that education can be effectively enjoyed by all children, particularly those at risk of food insecurity and malnutrition. Second, it is a measure to address child nutrition and food security. The constitution recognises the right of every child to a “basic education” in section 29(1)(a) of the constitution, and to “basic nutrition” in section 28(1)(c).
As Katharine Hall, a senior researcher at the Children’s Institute (UCT), noted in a supporting affidavit to the amicus curiae submissions, six million of South Africa’s 20 million children live in households with no employed adults. Even taking all social grants into consideration, about one third (6,4 million children) live in households where income is below the food poverty line.
The food poverty line is the rand value below which a person would be unable to afford enough food to supply them with the minimum daily per capita energy requirements for adequate health as defined by the WHO (2,100 kilocalories). Unless a person’s diet is supplemented in some way, anyone living below the food poverty baseline of R561 per person (in 2019), would be at risk of malnutrition, with serious threats to their survival, health and development.
In this context, the NSNP – which is provided to schools in quintiles 1-3 (the poorest 60% of schools) and some quintile 4 schools – plays a critical role in supplementing the nutrition of half of all children in the country – 9,6 million children in total.
This role has become even more vital given the severe economic impacts of the lockdown. According to Jeremy Seekings of UCT, in an expert affidavit submitted in the case, the food crisis has worsened significantly. He demonstrates that other measures taken by the government, such as increasing social grants and the delivery of food parcels, have not been nearly sufficient to plug the hole left by the suspension of the NSNP. According to Seekings, food parcels and feeding schemes reached only a small fraction – one-fifth, perhaps only one-tenth – of the households that needed them. He describes the suspension of the NSNP as “a colossal disaster for getting food to poor children”.
Interpreting socio-economic rights
This case raises a number of significant issues relating to the interpretation of the socio-economic rights of children in our Bill of Rights.
First, who bears the responsibility to provide for children’s basic socio-economic rights protected in section 28(1)(c) of the constitution? This section provides that every child has the right “to basic nutrition, shelter, basic health care services and social services”.
In the Grootboom case, Justice Zak Yacoob held that when children are being cared for by their parents or families, the state is not obliged to provide shelter on-demand to parents and their children. In other words, parents and guardians bear the primary responsibility of providing for their children, while the state has secondary obligations to support children and their families to ensure that children are accorded the protection contemplated by section 28. When children are not in family care (for example, when they are in alternative care or abandoned), the state assumes the primary duty to fulfil children’s socio-economic rights.
In the subsequent TAC case, the court clarified that the state’s obligations with respect to children’s socio-economic rights are also triggered when parents or families lack the means to provide for children’s socio-economic needs themselves. This is in line with international law such, as the UN Convention on the Rights of the Child. Thus section 27 of the Convention on the Rights of the Child (ratified by South Africa) provides that:
“parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities, and financial capacities, the conditions of living necessary for the child’s development.”
States Parties, in turn, have the duty, within their means, to:
“take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.”
Thus the constitution and relevant international law establishes that when parents cannot provide for their children’s socio-economic needs due to poverty, the state has a legal duty to assist them through programmes that enable children’s survival and development.
The second legal issue raised by the case is: What is the relationship between the right of children to a basic education in section 29(1)(a) of the constitution, and the right to basic nutrition in section 28(1)(c)? In addition to being an essential programme to fulfilling children’s right to basic nutrition in s 28(1)(c), can the NSNP also be regarded as an essential component of the right to basic education in s 29(1)(b)?
Government’s own conception of the programme is clearly that it enhances children’s learning capacities, thereby fostering quality education. This legal question raises the interdependence between rights as integral to a substantive, transformative interpretation of the Bill of Rights. It implies that when it is not possible to protect one right in the Bill of Rights without also protecting elements of other rights, then those elements should also be regarded as essential components of the relevant right.
The Constitutional Court has endorsed the interconnectedness of rights and their relevance to the interpretation of socio-economic rights. In addition, our courts have recognised education as a holistic right, which encompasses the preconditions for effective teaching and learning such as the provision of textbooks, infrastructure such as school furniture, and scholar transport. Given that it is indisputable that the school nutrition programmes play a vital role in ensuring effective learning for children experiencing food insecurity, such programmes are clearly an integral part of the right to education, particularly in a context of widespread food insecurity.
The Constitutional Assembly clearly intended to impose a direct duty on the state to ensure a basic floor of services to children, given their particular vulnerability and importance to the future of any society.
The third legal issue that arises from this case concerns the nature of the duty imposed on the state by sections 28(1)(c) and 29(1)(a) of the constitution. Both of these constitutional provisions do not contain the qualifying phrases of “reasonable measures”, “progressive realisation”, and “within available resources”, which are present in the case of the socio-economic rights of “everyone” in sections 26 and 27 of the constitution.
The Constitutional Assembly clearly intended to impose a direct duty on the state to ensure a basic floor of services to children, given their particular vulnerability and importance to the future of any society. Indeed this is how the Constitutional Court has interpreted the right to basic education in section 29(1)(a). Thus in Governing Body of the Juma Musjid Primary School v Essay N.O, the Constitutional Court held that the right to basic education is “immediately realisable” and subject only to limitation in terms of the stringent requirements of the general limitations clause in the Bill of Rights (s 36). Given that section 28(1)(c), which protects the right to basic nutrition, is similarly unqualified, one expects that it too will be treated as an immediately realisable right.
However, in the NSNP case, we are not dealing with the absence of a programme giving effect to the relevant children’s socio-economic rights. A programme has been put in place and budgetary provision has been made for the NSNP for 2020 through a conditional grant. This programme has made a major contribution to enabling South Africa’s children to enjoy their rights to basic nutrition and education.
What is the legal position, then, when such a programme is withdrawn and is no longer available to all children who previously had access to it?
The Constitutional Court has held in cases such as Jaftha v Schoeman, as well as the Juma Musjid case, that when people enjoy existing access to a socio-economic right, and the state takes measures that effectively impair or deprive the beneficiaries of such access, this amounts to a so-called “negative” violation of the relevant rights.
Again such measures can only be justified under the general limitations clause, which requires a law of general application, a weighty reason, consideration of less restrictive measures, and a proportional balance between the impact of the measure and its purpose.
In the present case, the state does not seem to be relying on the general limitations clause to justify the suspension of the NSNP. It is also noteworthy in this context that both the UN Committee on the Rights of the Child and the UN Committee on Economic, Social and Cultural Rights strongly discourage “retrogressive measures” that diminish existing levels of protection of socio-economic rights. According to the respective UN committees, such measures require very weighty justifications, a proportionality inquiry, and the protection of essential needs. As the NSNP is a programme to fulfil immediate, essential needs of an extremely vulnerable group, it is doubtful whether its suspension would fulfil these international law criteria.
Remedying human wrongs
Finally, the case raises the question of the appropriate remedy should the Applicants succeed on the merits of the case.
As noted above, in addition to declaratory and mandatory orders, the applicants have also requested a supervisory order for the court to oversee the roll-out of the NSNP to all qualifying learners. Such orders are not unprecedented in our jurisprudence and are usually given in cases where the breach of rights has very serious consequences and there is evidence that the government will not implement the order satisfactorily or expeditiously. The applicants argue that these factors are present in the current case.
These legal issues do not raise simply abstract points of law relating to the interpretation and enforcement of the socio-economic rights in our constitution. The outcome of the NSNP case will shape the terrain for achieving effective accountability for socio-economic rights in South Africa for many years to come.
At the heart of the case lies the fundamental question of whether the socio-economic rights enshrined in the Bill of Rights has real meaning for hungry children. DM/MC
Sandra Liebenberg is Distinguished Professor and HF Oppenheimer Chair in Human Rights Law, Stellenbosch University Law Faculty.
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