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Equal Education and Others v Minister of Basic Education and Others (22588/2020) [2020] ZAGPPHC 306

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Equal Education and Others v Minister of Basic Education and Others (22588/2020) [2020] ZAGPPHC 306

24th July 2020

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1] The essence of this matter aptly can be captured as: “For now I ask no more than the justice of eating.”[1]

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[2] The applicants are on an urgent basis seeking declaratory orders against the Minister of Basic Education [ the Minister] and the MEC’s of Education of eight provinces of South Africa [the MEC’s] declaring that they are in breach of their constitutional and statutory duty to ensure that the National School Nutrition Programme [NSNP] provides a daily meal to all qualifying learners whether they are attending school or studying away from school as a result of the Coivd-19 pandemic. No relief is sought against the MEC of the Western Cape, the ninth province because the Western Cape provincial government had publicly committed and directed to immediately provide a daily meal to all qualifying learners, whether they have returned to class as Grade 7 or 12 learners. The breach in this application is from 8 June 2020, the date the schools were to be reopened and not for the entire period the schools were closed.

[3] The applicants also seek an order against the Minister and the eight MEC’s that they without delay ensure that the NSNP is implemented in such a manner that it provides a daily meal to all qualifying learners.

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[4] The applicants further seek a supervisory interdict effectively seeking judicial supervision against the Minister and the MEC’s with a step by step plan as to how the NSNP will be implemented with such plan to be submitted to the Court within 5 days and with follow up reports every fifteen days until the order is discharged by the Court. The applicants also seek an order that on the same papers, supplemented if necessary, they may approach the Court again on whether the plans comply with the respective duties and whether there was compliance with this Court order.

[5] The Court admitted, as unopposed, the Children’s Institute represented by the Centre for Child Law as Amicus Curiae; a friend of the Court. This Court admitted into evidence the affidavit of Ms Hall, a senior researcher of the Children’s Institute, a research unit based in the Faculty of Health Sciences at the University of Cape Town. I did so as the evidence was relevant to the issue before Court and a Court should be slow to refuse evidence that may assist in arriving at a just outcome, in particular those relating to vulnerable groups like children who are the subjects of this application.[2] In terms of s173 of the Constitution Act 108 of 1996 [the Constitution] this Court can regulate its own process and admit the evidence. And, in any event, the evidence was not objected to.

[6] There was no objection to the hearsay evidence that the applicants presented on affidavit and I admitted the evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act 45 of 1988.

[7] The urgency of the application and the standing of the applicants are undisputed. The fact that the application is brought in the interest of the rights of the learners to basic education and basic nutrition, in the interest of the parents of the learners, and in the public interest are also not disputed.

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