Court steps in (again) to protect children under lockdown – this time the little ones

By Nurina Ally, Rubeena Parker and Tess Peacock

4 Nov 2020

A robust civil society and a responsive judiciary have stepped in to stave off child hunger and ensure that children continue to access early childhood development services. This is while the Department of Social Development continues to fail children.

In a high court judgment handed down on 20 October, Judge van Nieuwenhuizen bemoaned the “absolute no-care arrogance” displayed by the Department of Social Development (DSD) in relation to matters impacting on the rights to life, nutrition, social services and education of infants and young children.

When the national lockdown began, Early Childhood Development (ECD) providers were forced to close their doors and children attending these programmes were no longer able to access basic nutritional and developmental support.

While this may have been bearable for a short period, for months after the hard lockdown, providers and parents languished in uncertainty as the DSD offered little guidance on the reopening of ECD programmes.

Eventually, the minister of social development had to be taken to court to ensure that ECD providers could resume operations. A scathing judgment was handed down ruling that the ECD sector could reopen subject to appropriate or prescribed safety measures being in place.

Yet, even following the judgment, the DSD still failed to ensure that every effort was made to create an enabling environment for ECD programmes to reopen.

Instead, onerous, unattainable and expensive safety measures were published by DSD in response to Covid-19, which most struggling ECD providers could not meet.

To make matters worse, at the time when children needed it the most, the provincial MECs (with the exception of the Western Cape) either withheld or only partially paid subsidies to ECD providers.

And so the minister and eight provincial MECs had to be taken to court again by various NGOs and ECD providers to compel the payment of crucial ECD subsidies.

Court compels payment of ECD subsidies

The ECD subsidy provides crucial support for the nutrition, stimulation and administration needs of ECD programme providers. Government subsidies are paid to over 800,000 ECD children.

Fifty percent of the subsidy must be used to meet the nutritional needs of the children attending those ECD programmes. The subsidy is funded predominantly through the DSD’s general budget, as well as a purpose-specific conditional grant (although the court seemed to be of the opinion that this flowed primarily through the conditional grant).

The minister maintained that provinces should continue to pay full subsidies during the lockdown.

Despite this, provincial MECs withheld the subsidies or portions thereof for various reasons, including, among others, that ECD providers were not operational during this time and would have no need for the nutrition or stimulation portions of the subsidy.

This, in the face of dire need by ECD providers and children. The effect was devastating. The head of a daycare centre in Shoshanguve told the court:

“During lockdown l see children roaming around and I ask what they are going to eat...We used to provide two balanced meals with snacks in between. If we do not open how will we feed the children?

“Without the subsidies, I don't know what we are going to do.”

The MECs dismissed such stories as “sensational and ill-informed”.

Judge Nieuwenhuizen said these comments were “hurtful and demeaning” of the plight of people at “grassroot level... the very people the state is constitutionally obliged to serve”.

As we have previously noted, in his July ruling ordering the re-opening of the ECD sector, Judge Hans Fabricius was also driven to issue a punitive costs order when the DSD failed miserably to treat the case and court with any degree of seriousness.

According to the judgment, the MECs provided an undertaking during the course of the litigation that the full allocation of the subsidies would be reinstated (upon the introduction of Level 2 of the lockdown).

However, the undertaking was subsequently diluted with the MECs insisting that the subsidy would only be paid to “operational” ECD providers.

This would exclude the very ECD providers who had been most devastated by Covid-19 and would be unable to re-open without the subsidy. This absurdity would leave the most vulnerable children hungry and out in the cold.

A clearly exasperated Judge Nieuwenhuizen, said:

“This in turn places the ECDs in the poor communities in the invidious position that they cannot open without receiving the subsidy, but without opening they cannot receive the subsidy!

“This predicament seems to have either escaped the MECs or they simply do not care for the plight of poor, young, vulnerable children in communities.”

Relying on the landmark judgment handed down in July in the school feeding scheme case brought by Equal Education and two Limpopo schools, Nieuwenheizen held that the failure of the minister and MECs to ensure that subsidies were paid infringed children’s rights under section 28(1)(c) of the Constitution, which includes the right to basic nutrition and social services.

The MECs were accordingly ordered to pay the full amount of subsidies owing to ECD providers for the full duration of the lockdown, regardless of whether or not they had been able to resume such services.

Serial failure to take rights seriously

Significantly, the approach of the provincial DSD officials to the litigation in this case – their “hurtful and demeaning” response to the plight of ECD providers and children, and the persistent denial of their constitutional obligations – was strongly reprimanded by the court through a punitive costs order.

Even though this sends an important symbolic signal, the DSD has clearly been unmoved by similar reprisals in recent cases.

As we have previously noted, in his July ruling ordering the re-opening of the ECD sector, Judge Hans Fabricius was also driven to issue a punitive costs order when the DSD failed miserably to treat the case and court with any degree of seriousness.

And in a recent judgment relating to funding of care services for the elderly during lockdown, Judge Judith Roberson of the Grahamstown High Court expressed disappointment at the DSD’s “regrettable” resistance to the litigation, particularly “when the subject matter of the litigation is the needs of older persons and their constitutional rights to social services and dignity, and even the right to life”.

These judicial slaps on the wrists, while necessary, are evidently not enough to change the DSD’s approach.

Perhaps the awarding of personal costs orders against responsible officials is required to start seeing real accountability.

This trend highlights the tragic reality that the Department of Social Development is either being very poorly advised or is not willing or able to take the rights of the most vulnerable in our society seriously.

A robust civil society and a responsive judiciary have stepped in to stave off child hunger and ensure that children continue to access early childhood development services.

We should celebrate these victories.

But these interventions should be the exception. Instead, they are becoming the depressing norm. DM/MC

Nurina Ally is a lecturer in the faculty of law at the University of Cape Town. Rubeena Parker is the Head of Research at the Equal Education Law Centre. Tess Peacock is the founder of the Equality Collective and an associate of Ilifa Labantwana.

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