Angie Motshekga and MECs in breach of constitutional duty

‘For now I ask no more than the justice of eating.’
Pablo Neruda, Chilean poet and Nobel Prize winner

Minister of Basic Education Angie Motshekga and the MECs of the various provinces have been held to be in breach of their constitutional duty in halting the feeding scheme under the National School Nutrition Programme (NSNP) during the Covid-19 lockdown, then reintroducing it in a very haphazard fashion, putting millions of school children at risk of starvation.

Read: South African children face hunger as school closure halts free meals

The Pretoria High Court on July 17 ordered that the NSNP be implemented without delay, and that it provide 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”.

The education minister and the various provincial MECs put up what the judge referred to as a “semantic defence”, which was “rejected as being in bad in law and contrived”.

The NSNP was initiated in 1994 by the first post-apartheid democratic government with the objective of alleviating hunger, thereby improving the quality of education by enhancing learning capacity, school attendance, punctuality and general health.

The court recognised that providing the poorest of the poor child with at least one nutritious meal a day was a lifesaver.

Covid-19 had the devastating effect of denying nine million school-going children with a daily meal. Schools were closed for 12 weeks.

The government did announce various measures to mitigate suffering, but child support grants are paid per caregiver, not child, and the government only managed to deliver 788 000 food parcels, whereas the feeding scheme would have provided 45 million meals per week. The meagre food parcels would have not assisted some 77% undocumented children.

Read: Covid-19 school closures in South Africa and their impact on children

The judgment referred to the Report on Social Grants and Feeding Schemes under the Covid-19 Lockdown in South Africa by Professor Jeremy Seekings, director of the Centre for Social Science Research at the University of Cape Town. This report notes that “the social grant reforms failed to alleviate the plight of the poor”.

“Millions of people who are in informal employment [have] received no income or grants and they cannot meet their and their families’ basic needs and expenses.”

According to the report, “less food was distributed to poor families during the lockdown than before the lockdown”.

The Children’s Institute, the amicus curiae (‘friend of the court’), gave evidence that an estimated 30% of the South African population experience severe levels of food insecurity. Further, an estimated 11.6 million children live in households below the upper poverty line.

It was argued in court that the suspension of the NSNP has infringed on children’s right to basic nutrition.

The court held that:

• Learners have an entitlement to receive basic nutrition which they have always received in terms of the NSNP. By discontinuing the NSNP the state is depriving the learners of this right to nutrition.
• The state remains responsible for providing families with other socio-economic rights to enable them to provide for their children.
• In interpreting the Bill of Rights to promote human dignity, equality and freedom, it can never allow for a child to go hungry. The “starvation of a child is unimaginable”. The department must roll out the NSNP.
• The minister and MECs have not complied with their constitutional and statutory duties.

Minister and MECs make statement under oath that differs from the facts

Even though the minister and the MECs admitted that the NSNP was not rolled out as it should have been when schools reopened, the following statement was made under oath:

“We are in fact doing precisely that which the applicants want us to do and we have been doing so without judicial supervision under a structural interdict.”

Acting deputy Judge President Sulet Potterill commented: “Making such a statement under oath when the common cause facts show the contrary, is surprising and disturbing.”

In non-legal speak, one can deduce that the minister and the MECs lied under oath.

Potterill agreed with the applicants that the department has “played fast and loose with the facts” and therefore the department’s defence is meritless.

By order of court

The court made the following order:

• All qualifying learners, whether or not they have resumed classes, are entitled to receive a daily meal as provided for under the NSNP.
• The minister is under a constitutional and statutory duty to ensure that the NSNP provides a daily meal to all qualifying learners.
• The minister is in breach of that duty.
• The minister is ordered without delay to implement the NSNP, and ensure that it provides a daily meal to all qualifying learners.
• The MECs are under a constitutional and statutory duty to implement the NSNP in their respective provinces.
• The MECs are in breach of that duty.
• The minister and the MECs are ordered to file within 10 days, and under oath, their plans and programmes to this court, including the further steps the minister will take to ensure that the MECs implement the plans. The court will supervise that the minster and the MECs follow the orders.

The minister and the MECs have to pay the costs of the court case, including the costs of three counsel.

No doubt taxpayers will have to pay for this debacle and the behaviour unbefitting of a minister and MECs.