Last week, a detailed research report undertaken by Dr Nic Spaul and his co-researchers revealed the shocking effects of Covid-19 and the inadequacy of the national response. They observed unprecedented levels of household vulnerability, with more than half of all respondents (47%) saying that their household ran out of money to buy food in April and one in five (22%) reporting that someone in their household went hungry in the last seven days. Child hunger has at least “doubled since 2018, with one in seven (15%) reporting that a child went hungry in the last week because there was no money for food.”
Within this context, a recent judgment by Judge Sulet Potterill assumes great importance. That most commendable of NGOs, Equal Education (EE) and School Governing Bodies (SGBs) from two Limpopo schools, approached the high court for declaratory orders against the minister of basic education and the MECs of education of eight provinces, declaring that they are in breach of their constitutional and statutory duty to ensure that the National School Nutrition Programme (NSNP) provides a daily meal to all qualifying learners whether they are attending school or studying away from school as a result of the Covid-19 pandemic. EE and the two SGBs were represented by SECTION27 and the Equal Education Law Centre.
Significantly, no relief was sought against the MEC of the Western Cape, the ninth province, because the Western Cape provincial government had publicly committed and directed to immediately provide a daily meal to all qualifying learners, irrespective of whether they had returned to class as Grade 7 or Grade 12.
The NSNP was described by the director-general of education as follows:
“Where it was implemented, the Programme was shown to improve punctuality, regular school attendance, concentration and the general well-being of participating learners. Whilst learners were being provided with nutritious meals, they were taught to establish and maintain good eating and lifestyle habits for life. Nutrition education also provided educators with resource materials to support the curriculum and to make every school a healthy school. Furthermore, schools were encouraged to establish food gardens from which they could obtain fresh produce to supplement the menu in line with South African Food-Based Dietary Guidelines.”
As Judge Potterill observed, “It is thus literally a lifesaving programme for the poorest of the poor child by providing them with at least one nutritious meal a day while being educated. A programme that must be saluted.”
In terms of the evidence placed before the court by the applicants of the nearly 20 million children in SA, 13 million are enrolled from Grade R to Grade 12. Nine million of these children benefit from the NSNP. These are all learners in quintiles 1-3, which represent the poorest 60% of schools based on community poverty rankings, including some Quintile 4 schools. The NSNP supplements the nutrition of half of all children in the country, three-quarters of all learners and a fifth of the total population.
There was an initial expectation that the NSNP programme would be rolled out for all learners including those who were not returning to school, that is, learners who were not in Grades 7 and 12. But on 1 June, the minister announced that the programme would be phased in with the result that no meals would be provided to those who had not returned to school. The minister and MECs argued that they had not refused to implement the programme, the clear announcement of an undefined phase notwithstanding.
This argument found no favour with the court:
“…despite many public and written undertakings that the NSNP would be rolled out to learners, whether attending school or not, when the schools opened, the NSNP was not rolled out to all learners not yet attending schools. In fact, this non rolling out to the other learners is common cause and this Court is troubled that such a defence is presented.”
On the basis of this factual matrix, Judge Potterill held that the minister and the MECs had failed to comply with their constitutional obligations contained in s27(1)(c), being the right of access to sufficient food; s28(1)(c), the right of every child to basic nutrition; and s29(1)(a), the right to basic education. These rights enshrined in the Constitution imposed a clear obligation on the government to ensure that the NSNP programme had to cover all learners. The failure to provide meals to all learners was a clear and unjustifiable breach of these constitutional rights.
The court ordered the minister and MECs to implement the NSNP so as to ensure that every learner is provided with a daily meal. Although not finding that the minister had acted in bad faith, the court was not prepared to simply make an order. Hence, it exercised its supervisory power to ensure that the minister remained accountable. For this reason, it ordered that within 10 days the minister is to file at the court under oath, and provide to the applicants, a plan and programme which she will implement without delay so as to ensure that the MECs carry out without delay their duties.
There has been much debate about the role of courts during Covid-19, with considerable criticism of the deferential attitude of the judiciary to the executive in the management of the pandemic. This case is a fine example where courts can and should intervene. The government had lamentably failed the youth of this country and thereby had acted contrary to clear constitutional obligations imposed upon it. This was not a case where the court was faced with contradictory expert evidence as has been the case in many challenges to Covid-19 regulations. The court was required to be sensitive to the clear breach of the constitutional rights which have placed arguably millions of children in grave danger. It is here that a court can intervene to make a difference.
It is to the great credit of EE, the two SGBs, SECTION27, EELC, its counsel and Judge Potterill that the orders granted may well save many lives. DM