Maverick Citizen Op-Ed

School feeding court case: The justice of eating and the obscenity of hunger

By Faranaaz Veriava and Sasha Stevenson 19 July 2020

Apart from the multiple, devastating, even deadly, health consequences of Covid-19, global hunger has increased significantly during the pandemic, say the writers. (Photo: Gallo Images / Alet Pretorius)

The Pretoria High Court judgment affirms that school nutrition is a component of the right to basic education.

The judgment in the school nutrition case begins with a quote from the poet Pablo Neruda: “For now I ask no more than the justice of eating.” 

The judge later comments in her judgment on the affidavits relied on in the case that describe the impact of hunger, saying they “make it clear that hunger is not a problem, hunger is an obscenity”.

Apart from the multiple, devastating, even deadly, health consequences of Covid-19, global hunger has increased significantly during the pandemic. According to a just-released Oxfam report, “The World Food Programme (WFP) estimates that the number of people experiencing crisis-level hunger will rise to 270 million before the end of the year as a result of the pandemic, an 82% increase since 2019.” 

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The report very disturbingly identifies South Africa as a rapidly “emerging” hunger “hot spot”.

Indeed, Dr Imtiaz Sooliman, the founder of Gift of the Givers, observes in a recent article that the hunger that is currently being experienced in our country is “The worst amount of hunger in the 28 years of Gift of the Givers”.

The National Income Dynamics Study (NIDS) Coronavirus Rapid Mobile Survey (CRAM), released this week, supports these statements with clear and terrifying data. Forty-seven percent of respondents said their household ran out of money to buy food in April, with one in five respondents (22%) noting that someone in their household went hungry in the last seven days. Child hunger has at least doubled, since 2018 with one in seven respondents (15%) noting that a child in their household went hungry in the last week because there was no money for food. 

It is against this awareness of the growing extent of hunger that a court challenge requiring the Department of Basic Education (DBE) to roll out the National School Nutrition Programme (NSNP) to all qualifying learners was initiated. 

There are significant legal principles that may be distilled from the judgment. These principles provide a significant contribution to the growing canon of socioeconomic rights law and scholarship in South Africa. In this instance, in respect of two of the unqualified socioeconomic rights in the Constitution: the right to basic education in section 29(1)(a) and the child’s right to basic nutrition in section 28(1)(c).

The NSNP, which normally feeds approximately 9.6 million of the poorest learners across the country during school term, is widely lauded as a successful poverty alleviation programme. The NSNP was suspended during the 12-week school closure – two weeks of which were school holidays. The programme is described in the judgment as “literally a lifesaving programme for the poorest of the poor child[ren]… providing them with at least one nutritious meal a day while being educated. [It is a] programme that must be saluted.” 

When the DBE announced that schools would be reopened following the 12-week closure through a process of phasing in different grades over the next few months, it simultaneously and repeatedly undertook to provide the NSNP to all qualifying learners, including those not yet phased back into school. The DBE later did an about-turn, stating it needed time to “acclimatise” before rolling out the NSNP to grades not yet phased back to school. 

Equal Education and the governing bodies of two Limpopo schools – the applicants in the case – alleged that the about-turn was tantamount to a refusal by the DBE to roll out the NSNP to all qualifying learners in violation of the DBE’s statutory and constitutional obligations to provide the NSNP to all qualifying learners. 

The DBE’s defence was to deny that it had ever “refused” to provide the NSNP and claimed it was, in fact, implementing the NSNP. This was not borne out by the reality on the ground. Therefore, in the light of the incontrovertible and heartbreaking evidence of learners going hungry that was provided by the applicants, the court upheld the applicants’ claim and rejected the DBE’s “semantic defence” on the basis that it was “bad in law and contrived”.

There are significant legal principles that may be distilled from the judgment. These principles provide a significant contribution to the growing canon of socioeconomic rights law and scholarship in South Africa. In this instance, in respect of two of the unqualified socioeconomic rights in the Constitution: the right to basic education in section 29(1)(a) and the child’s right to basic nutrition in section 28(1)(c).

First, the judgment confirms the status of the right to basic education and the child’s right to basic nutrition as unqualified rights. It notes that these rights are not qualified by the terms “progressive realisation” and “available resources” as are most of the other socioeconomic rights in the Constitution. The judgment notes that the obligation on the government to ensure the fulfilment of these unqualified rights is “immediate” unless these rights are limited in terms of a law of general application in terms of Section 36 of the Constitution and where it is reasonable and justifiable to do so. The judgment notes that in this instance the DBE did not justify why from 8 June 2020 it was reasonable not to roll out the NSNP to all the learners.

A vibrant and incremental jurisprudence in respect of the right to basic education has over more than a decade of strategic litigation identified teachers, school infrastructure including decent sanitation, textbooks, scholar transport for poor learners living far distances from school, and desks and chairs as essential for the enjoyment of the right. School nutrition may now be added to this list of essential educational entitlements.

Second, the judgment notes that the implication of these rights being unqualified is that the state is obliged to provide these unqualified rights in circumstances when parents and caregivers are unable to, such as where they cannot afford to. In affirming the state’s responsibility to provide a school meal to the poorest learners, the judgment quotes the seminal case of Minister of Health v Treatment Action Campaign that states: 

“The State is obliged to ensure that children are accorded the protection contemplated by section 28 that arises when the implementation of the right to parental or family care is lacking. Here we are concerned with children born in public hospitals and clinics to mothers who are for the most part indigent or unable to gain access to private medical treatment which is beyond their means. They and their children are in the main dependent upon the State to make health care services available to them.”

The fact that 98% of children in the country attend school means the state can comply with part of its obligation to provide services to children who need them through provision of services at schools. The judgment notes that schools are “the critical points of contact for reaching vulnerable children, with no other state service that can connect with children on such scale and with such regularity”.

Third, the judgment affirms that school nutrition is a component of the right to basic education and provides a “supplementary” purpose in the provision of basic education that being to enhance the learning capacity of children whilst at school. The court based this finding on the DBE’s own policies, practices and statements, and on international law. A vibrant and incremental jurisprudence in respect of the right to basic education has over more than a decade of strategic litigation identified teachers, school infrastructure including decent sanitation, textbooks, scholar transport for poor learners living far distances from school, and desks and chairs as essential for the enjoyment of the right. School nutrition may now be added to this list of essential educational entitlements.

Fourth, the judgment simultaneously acknowledges that children have a self-standing right and independent right to basic nutrition. This is important, as the right must exist outside of a school setting and irrespective of whether a child is in the school. The judgment finds, “If there was no duty on the Department to provide nutrition when the parents cannot provide the children with basic nutrition, the children face starvation. A more undignified scenario than starvation of a child is unimaginable.” In so stating, the judgment highlights that rights are indivisible, interdependent and interrelated. 

The Children’s Institute, represented by the Centre for Child Law intervened as an amicus curiae (friend of the court) in the case. The amicus curiae made the point that a holistic approach to interpreting rights is necessary to identify “how various forms of social injustice overlap and interact with each other to create new forms of disadvantage and marginalisation”. Such an approach, they argued, was important to safeguard the “development and survival of children”.

Fifth, the judgment held that the suspension of the NSNP was the removal of a “pre-existing” right to basic nutrition and held this constituted a “deliberate retrogressive measure”.  The judgment develops the legal concept of retrogression, which, while highly developed in international socioeconomic rights law, remains relatively undeveloped in the South African jurisprudence on socioeconomic rights. 

The judgment relies on a submission of the amicus curiae asserting that the General Comment 19 of UN Committee on the Rights of the Child states that: “In times of economic crisis, regressive measures may only be considered after assessing all other options and ensuring that children are the last to be affected, especially children in vulnerable situations.” 

As unprecedented levels of hunger in our country continue to rise during this time, what is required is a benevolent state, prepared to do more, not less, to alleviate the hunger amongst each and every person living in this country. Anything else is shameful.

The judgment, in noting its disapproval of the regressive measure, correctly acknowledges that the lockdown had resulted in an economic crisis. This ought to have made the government more, not less, vigilant of the suspension of a pre-existing right. The judgment, commenting on expert evidence on other measures taken to alleviate hunger during the lockdown notes that “there is, and was, no viable substitute for the NSNP for the children.” We have prior to the lockdown and in the context of growing austerity cautioned against the curtailment of social benefits and its impact on the realisation of socioeconomic rights.

Sixth, the judgment granted supervisory interdict despite acknowledging a wariness within the judiciary to do so historically.  The applicants sought a supervisory order requiring the respondents to submit to the court and the applicants a plan and programme which they were required to implement and then to file successive plans until the order of the court was discharged. 

The judgment quotes the case of Mwelase v Director-General for the Department of Rural Development and Land Reform where the Constitutional Court noted that:

“In cases that cry out for effective relief, tagging a function as administrative or executive, in contradistinction to judicial, though always important, need not always be decisive. For it is in crises in governmental delivery, and not any judicial wish to exercise power, that has required the courts to explore the limits of separation of powers jurisprudence. When egregious infringements have occurred, the courts have had little choice in their duty to provide effective relief. That was so in Black Sash I, and it is the case here. In both, the most vulnerable and most marginalised have suffered from the insufficiency of governmental delivery.”

Relying heavily on this judgment, the court in the present case then proceeded to impose a supervisory order. The court found that, “Children are categorically vulnerable, [and] poor hungry children are exceptionally vulnerable. The degree of the violation of the constitutional rights are thus egregious”. 

The court further pointed out the tendency within the DBE in this case to “play fast and loose” with the facts as to the extent of roll-out and to make inaccurate statements under oath “when the common cause facts show the contrary”, an approach that the court found “surprising and disturbing”. Finally, it noted that there exists “administrative chaos and confusion” in the provinces which necessitated supervision to ensure the roll-out of the NSNP.

As unprecedented levels of hunger in our country continue to rise during this time, what is required is a benevolent state, prepared to do more, not less, to alleviate the hunger amongst each and every person living in this country. Anything else is shameful. As the judge in this matter said:

“Hunger is not an issue of charity, but one of justice.”

That is why we went to court in this case. DM/MC

 Faranaaz Veriava and Sasha Stevenson are both lawyers at SECTION27. Together with the Equal Education Law Centre, SECTION27 represented the applicants in the case.

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