Published by News24 on 21 July 2022
By Julia Chaskalson (research and advocacy officer at Section27), Pila-Sande Mkuzo (attorney at the Equal Education Law Centre) and Stacey Jacobs (Equal Education Researcher)
Two years ago, on July 17 2020, the high court handed down a watershed ruling that got school meals back into the stomachs of pupils who needed them. The judgment was aptly dubbed ‘the justice of eating’.
Break time in schoolyards around the country is characterised by laughter and play – and in no-fee-paying schools, by bustling queues for school meals.
On March 17 2020, more than 9 million pupils around the country waited at lunchtime to receive a school meal, as they did every day. The following day, a week before the rest of South Africa entered its first hard lockdown to combat the spread of Covid-19, schools across the country abruptly closed. Overnight, more than 9 million vulnerable children from mostly no-fee-paying schools were deprived of daily meals from the National School Nutrition Programme (NSNP), a crucial safety net that reduces hunger and facilitates learning.
Spurred by evidence of unprecedented levels of child hunger and the contribution school meals play in ensuring that undernourished children are able to learn, education activists tried to persuade Basic Education Minister Angie Motshekga to feed all qualifying pupils, even when they were learning from home. When promises were broken and plans repeatedly delayed, Equal Education and the governing bodies of two schools in Limpopo, represented by Section27 and the Equal Education Law Centre, filed an urgent court application to demand that education departments reinstate the NSNP to qualifying pupils, arguing that the indefinite suspension of the programme was regressive and unjustifiable.
Two years ago, the Pretoria High Court handed down a landmark judgment recognising the inextricable link between pupils’ rights to basic nutrition, basic education, equality and dignity. Acting Deputy Judge President Sulet Potterill declared the department of basic education and eight provincial education departments to be “in breach” of their constitutional duties to fulfil those rights, describing that violation as “egregious”.
Reflecting that “hunger is not a problem – hunger is an obscenity”, the court rejected education departments’ vague plans to reinstate the NSNP at an indefinite future date, and ordered the immediate delivery of school meals to all qualifying pupils.
Besides the importance of that judgment for accountability, problem-solving and tracking the delivery of what Potterill described as “literally a lifesaving programme for the poorest of the poor child”, the court order reaffirmed that nutrition and basic education were interrelated and unqualified rights.
The right to basic education requires government to provide pupils with a basket of entitlements, including safe school infrastructure, school furniture, stationery, textbooks and scholar transport.
The judgment expanded those entitlements to include basic nutrition. Although the department of basic education’s own policies recognise nutrition as a component of the right to basic education, it denied that right included the provision of nutrition by schools. The court rejected that stance, reiterating that nutrition and the ability to learn were mutually reinforcing and indivisible. The protection and provision of nutrition – even in periods of crisis – is a key entitlement for pupils.
Given that education departments had made no substantive plans to deliver meals to pupils at the time of the court hearing, the judgment included a structural interdict as the most pragmatic remedy to ensure pupils received the food they needed.
The department and provinces had to file reports on the number of pupils receiving daily school meals and plans to support the programme during disrupted periods of tuition. The reporting presented an array of challenges, with late submissions and frequently inadequate data. However, the process also created opportunities for education activists to engage with the department about challenges on the ground and to propose solutions that ultimately strengthened service delivery.
Importantly, the judgment ordered education departments to provide meals to all qualifying pupils – not only to those who returned to school for every day of the academic year during the pandemic. One of departments’ greatest challenges was developing systems to feed children who were required to continue learning at home due to rotational timetabling or the phased return of different grades. We suggested providing scholar transport for pupils to collect their meals, or food parcels to cover their nutritional needs on days when they were not at school.
Continued monitoring by Section27, Equal Education and the Equal Education Law Centre, as well as engagements with education departments, improved access to school meals. In September 2020, the department of basic education reported that 4 million pupils were receiving meals while at home; by October last year, that number had doubled, with 83% of eligible pupils (more than 8 million children) queuing up at school for meals, even on days when they were not required to be physically in classrooms. However, more than 1.5 million eligible pupils were still falling through the cracks: the NSNP never reached its full capacity until Cabinet approved the scrapping rotational timetabling for all schools in February. Although imperfect, the implementation of the court order got meals into the majority of pupils’ stomachs at a time when they would otherwise have gone hungry.
By April, more than 9.9 million children were benefiting from the NSNP. We were notified by education departments of their intention to discharge (let go of) the order in February. While reporting is no longer necessary to ensure access to school meals, we have reserved the right to return to court if pupils’ access to school meals becomes restricted in future.
Two years ago, the high court put pupils first. In the current economic climate, where food prices have soared, words from the judgment bear repeating: “Hunger is not an issue of charity, but one of justice.”