OPINION | Judgment on reopening of private preschools hardly a victory

Brenton Geach, Gallo Images

Lacklustre arguments from parties involved and very little detail in a high court judgment around the reopening of early childhood development centres (ECDCs) cannot be regarded as a victory, writes Nicole Breen. 

On 6 July, the Gauteng Division of the High Court in Pretoria handed down a judgment relating to the reopening of private preschools, including Grade R.

The court found that Disaster Management Act regulations pertaining to lockdown Level 3 were unconstitutional as they related to these independent schools and that they were to open immediately, subject to the implementation of appropriate Covid-19 measures to protect children and staff.

Indeed, there are many benefits for young children being able to return to preschool but this court judgment represents a rocky road with lingering controversy between the parties.

Perhaps a good place to begin is to question whether all parties really put their best foot forward in making their respective cases.

In truth, neither party made particularly compelling arguments as to why these schools ought to open, save an applicant submission that children are, among other things, unlikely to become seriously ill from the disease or unlikely to be significant vectors of the disease. While it was substantiated with good evidence, this submission was far from the predominant focus of discussion, which it should have been considering the best interests of the child were at stake.

There was no mention of what kind of personal protective equipment (PPE) is required for young children to safely go to school and, therefore, no onus placed on their opponents as to what they should be providing in the event that the motion of the applicants was granted.

No prescribed papers 

The respondents were the ministers of social development, basic education and cooperative governance and traditional affairs.

The three departments' replies were entirely lacklustre, even failing to furnish the court with virtually any of the prescribed papers to set out their argument as to why private pre-primary schools could not reopen.

They also attempted to utilise circulars as binding legal documents, something that is generally not successful in our law. Their failure to give it a fair shake ultimately leads one to wonder why two of the respondents elected to oppose the application at all. No doubt time and money could have been saved had they simply filed a notice to abide, as the third did.

The amicus curiae in the matter, SA Childcare (Pty) Ltd ("SACA"), provided the courts with some incorrect information, such as its argument that Grade R was regulated by the Children's Act (or its predecessor), which was never the case, and reference to a 'Schools Education Act' that does not exist in South African law.

Early childhood development (ECD) and partial care centres were referred to as public and independent private schools registered with the Department of Basic Education (DBE), which is neither factually nor legally correct. These and numerous other errors potentially skewed and weakened the court's judgment.

While the eventual outcome was probably what is best for children, it was a skirmish on papers rather an attempt to consider the real-life issues posed by having one's children at school rather than having them at home.

No mention was made, for instance, of the social, psychological and developmental issues motivating the need for ECD education. It seemed almost as if the institutions providing the ECD services were the focus of the case.

The obligations the state has towards young children were not crystallised by the order.

One would imagine the court would go so far as to illustrate the full or partial role of the government to assist with procuring PPE and put in place hygiene and safety measures for those operating in poor communities. All the court essentially did was to make a bold declaration that private pre-primary schools must open subject to appropriate measures without saying who was responsible for the implementation thereof.

The Department of Social Development made an attempt to mitigate the poverty of the judgment by publishing a media release dated 7 July.


It indicated it had already worked on readiness strategies published in the Government Gazette and had developed "Standard Operating Procedures and Guidelines for an Early Childhood Development Programme and/or Partial Care Facility to address, prevent and combat the spread of Covid-19", and that for reopening it required the completion of a self-assessment form as required in a Department of Social Development circular.

It highlighted that it would take all measures to assist ECD centres and/or partial care facilities and that it will not allow facilities to open unless they display the readiness to do so. It also highlighted that the judgment does not apply to other forms of ECD programmes, such as child minders or playgroups.

Solidarity was the third applicant in the matter. It took great issue with the Department of Social Development's media statement and issued its own release also dated the 7 July. It felt the requirements set out by the minister for ECD centres or partial care facilities to reopen was contrary to the provisions of the judgment that such facilities open immediately.

Solidarity sent the minister a letter of demand on 8 July requiring that her press statement be retracted and immediately allow for the centres/facilities to open if they feel they are ready to do so. They have indicated that in the event she does not comply, they are going to proceed with contempt of court proceedings.

While a very literal interpretation of the judgment could lend itself to them having a legitimate claim in this regard, someone has to bear accountability for these facilities. If a child or staff member gets sick or dies, someone has to take responsibility, and the government has indicated they will do so.

Furthermore, the Department of Social Development has a moral and legal obligation to communicate on this matter with the required information, otherwise the main communication regarding the reopening would be made by the media, which in some instances would not provide the necessary details.


More than a week after the judgment was issued, it is evident from reports in the media and social media that it mainly benefitted those preschools and ECD centres that had the means to comply with the measures and reopen. The majority, mainly serving poorer communities, are still working towards compliance with the measures to reopen safely and responsibly.

A child-centred approach is key in all matters concerning children.

This case essentially involved parties headbutting over an issue that ought to have been settled in a boardroom. Perhaps the departments intended to open the facilities all along, but then why oppose the motion?

This matter was a series of blunders on the part of the respondent, coupled by an incorrect focus on the part of the applicant. Unfortunately, we have seen a lot of this during the lockdown period. Let's stop it now.

- Nicole Breen is a freelance writer and current affairs analyst

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