Equal Education and Others v. Minister of Basic Education and Others, 22588/2020
In the midst of the COVID-19 pandemic, schools in South Africa closed, limiting the delivery of the National School Nutrition Programme (NSNP), which provides a daily meal to all learners in South Africa who qualify based on economic need. The Minister of Education announced that schools would be reopened and the NSNP restored on June 8, 2020, but when the time came to reopen schools to some students, the NSNP meals were not delivered as promised. The applicants sued the Department of Basic Education for a violation of constitutional and statutory duties and sought declaratory relief with court oversight to achieve full implementation of the NSNP program as soon as possible.
The issue in this case was whether the Minister of Education and eight South African provinces had constitutional and statutory duties to provide daily NSNP meals to learners. The plaintiffs included Equal Education, a nonprofit legal education advocacy organization and the school governing bodies of both Vhulaudzi Secondary School and Mashao High School. The parties sued the Minister of Basic Education of South Africa and the Members of the Executive Council (MEC) of Education for the eight provinces of Eastern Cape, Free State, Gauteng, Kwazulu-Natal, Limpopo, Mpumalanga, Northern Cape, and North West. The plaintiffs sought declarations that the respondents had breached their duties and orders that the NSNP should be implemented without delay to all qualifying learners. Additionally, the plaintiffs sought a supervisory interdict that called for the Minister and the MECs to provide reports on the progress of the NSNP implementation every 15 days until the judiciary discharged the order.
The National School Nutrition Program provides approximately nine million schoolchildren in South Africa who are in economic need with at least one nutritious meal every school day. During the COVID-19 lockdown, the South African school system was shut down for twelve weeks, two of which were prior-scheduled school vacation weeks and ten of which were regularly planned school weeks. At public meetings and by public statements throughout March, April, and May, the Minister of Education announced that the NSNP would again be available to all learners as soon as schools reopened. The initial date for school reopening was scheduled for June 1, 2020, but it was postponed to June 8, 2020. On June 1, 2020, the Minister of Education walked back her repeated statements that the NSNP would be fully implemented when schools reopened, stating that the government would first begin by providing meals to learners in grades 7 and 12. When the applicants asked the Department to clarify these statements, the Department stated that they would begin by using a “phased-in approach”. That approach, as implemented when learners in grades 7 and 12 returned to school, did not provide meals to learners in any other grades. The applicants challenged the Minister and MECs’ phased-in approach as a breach of the government’s duties under three provisions of the South African Constitution: section 27(1)(b), which protects the right to have access to sufficient food and water; section 28(1), which provides that every child has the right to basic nutrition, shelter, health care, and social services; and section 29(1)(a), which provides the right to basic education. The court relied on the argument that the government has an “negative” obligation not to impair a right protected in the Constitution to conclude that the Minister and the MECs had diminished the rights protected by sections 27(1)(b), 28(1), and 29(1)(a) by stalling the NSNP program implementation.
To illustrate the impact of the impaired rights, the court included compelling affidavits from several learners in grades 7 and 12 in its discussion of the case. These learners expressed guilt for receiving a meal every day while their siblings at home experienced hunger. Additionally, the court detailed the dismal conditions of child hunger in South Africa even during the normal operation of the NSNP program, and concluded that without a restoration of the program, the health of millions of learners would likely suffer.
The court concluded that all qualifying learners are entitled to a daily meal from the NSNP. The court held that as the NSNP was explicitly introduced to address both the right to basic education under section 29(1)(a) of the Constitution and the right of children to basic nutrition under section 28(1)(c), the Minister of Basic Education and the MECs have a constitutional duty to provide basic nutrition to learners, that learners have a basic right to nutrition, and that the suspension of the NSNP program has infringed upon that right.
The court ordered the Minister and the eight MECs to produce a progress report every 15 days on the NSNP implementation situation. However, as of the first reporting period, only the Minister had filed a report to the court. No MECs filed reports with the court at the 15-day deadline, however many of them filed a day late. After reviewing the reports, the applicants contended that the programs and reports were insufficient, and they provided the respondents with notices that if these defects are not remedied in the next reporting period, they will seek further relief from the courts.
In times of national and international crisis, the right to food and the necessity of nutrition remain paramount even as food may become more difficult to disseminate. Schools are an obvious touchpoint for food access in nations with universal education. Cutting back on such a program at a time of crisis breaches the social and economic rights to food, nutrition and education. The court made an order that the school meals program be fully implemented without delay. It also made a detailed order requiring regular reports, in order to provide accountability and to ensure that the program is actually implemented in accordance with the court’s order.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.