On Tuesday, Judge Janse van Nieuwenhuizen handed down a scathing judgement which found that Minister Lindiwe Zulu and all eight ANC MECs for Social Development had failed in their constitutional and statutory duties by withholding subsidies to Early Childhood Development Centers (ECDs) to allow them to function so that they may provide nutrition to vulnerable children in their care.
The Minister’s failure infringes on children’s rights entrenched in section 28(1)(c) of the Constitution that provides every child with the right to “basic nutrition, shelter, basic health care service and social services”.
The ECD sector experienced a multitude of hard blows during lockdown largely due to irrational government directives and regulations issued by Minister Zulu. Many ECDs have closed permanently as a result of lockdown and many will stay closed as there is no adequate government relief.
President Cyril Ramaphosa seems to be misguided when he stated in his economic reconstruction and recovery plan address that “support is being provided to more than 100 000 early childhood development practitioners.” The only support that a few ECDs received were once off PPEs despite their numerous desperate pleas.
The distinct difference between where the Democratic Alliance (DA) governs compared to other provinces, was made evident yet again in this judgement. The Western Cape Government was the only Social Development Department in the country that continued to pay ECDs their full subsidies throughout lockdown so that employees of ECDs could at least provide for their families and keep their kitchens open to feed children.
The Western Cape was the only province who kept school feeding schemes open because the DA understands that the provision of food is deemed an essential service.
The eight ANC MECs argument that only “operational” ECDs would be entitled to full subsidies was muted by the judgement as this place the ECDs in poorer communities in a position where they cannot open their doors at all. This type of ANC logic does not resonate with any pro-poor policy. In fact, all this does, is keep the poor, poor! To quote from the judgement: “This predicament seems to have either escaped the MECs or they simply do not care for the plight of poor young vulnerable children in their communities”.
The Minister and the MECs were found to be in “persistent denial of their statutory and constitutional duties and obligations throughout the proceedings” which is of serious concern as South Africa is on the brink of a humanitarian crisis.
In an attempt to abdicate accountability of the nonpayment by provincial MECs, the court had to remind Minister Lindiwe Zulu of her statutory obligation to take appropriate action in the event that provinces fail to pay subsidies to ECDs. The Minister and MECs have five days to report to the court on their plan and progress for full payment to all ECDs with whom they have a service level agreement.
Minister Zulu must redirect her focus back to the portfolio where her constitutional duty lies instead of in numerous chairperson positions she currently holds.
Instead of spending time and money on communities, civil society organizations and government spent time in court rooms where they were met with “absolute no-care arrogance” of Ministers and MECs who were found to be incapable of accepting the facts and truth of hunger and poverty when confronted by grassroot structures. And the court system has been overburdened by having to constantly remind this ruling government that it is the Constitution’s primary agent and that it must fulfil their duty right and properly.
This undue hardship faced by the ECD sector and vulnerable communities was a crisis that could have been averted if government had followed the Western Cape’s example of better governance and a real implementation of pro-poor policies. Withholding subsidies from the vulnerable was devastating.
Congratulations and applause are in order for all the brave and enduring plaintiffs as their victory is not for themselves alone, but for every ECD across the country who has a service level agreement which was not honored by Minister Zulu and her eight ANC MECs.