All private preschools may open immediately, court rules

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A general view of children and adults at Delft South Primary School standing in line to collect literacy books, sandwiches, oranges and apples.
A general view of children and adults at Delft South Primary School standing in line to collect literacy books, sandwiches, oranges and apples.
Brenton Geach, Gallo Images
  • The Gauteng High Court has ruled in favour of early childhood development centres reopening immediately.
  • The decision to keep nursery schools closed under Level 3 of the lockdown was declared unlawful and unconstitutional.
  • A costs order was also handed down by the court.


All private preschools and early childhood development centres (ECD) may open with immediate effect, if they can do so safely, the Gauteng High Court in Pretoria has ruled. 

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The case had been brought by trade union Solidarity's Occupational Guild for Social Workers and their School Support Centre (SCC) against the Department of Social Development regarding the reopening of private nursery schools.

Judge Hans Fabricius on Monday ordered that all private preschool institutions offering early childhood development services (Grade R and lower) are entitled to reopen immediately. 

Fabricius declared a decision by the Department of Social Development that private nursery schools remain closed under Level 3 of the coronavirus lockdown unlawful and unconstitutional.

He ordered Social Development Minister Lindiwe Zulu, the first respondent, to pay the costs of all the applicants. 

Fabricius said Zulu's conduct fell short of what could be expected in "proceedings concerning young and vulnerable children", and expressed his "strong disapproval".

The department failed to submit its court documents and failed to respond in any other way as court proceedings require.

READ | Childcare centres eager to reopen, say they serve as places of safety for children

"We are delighted with the ruling. It means thousands of parents will be able to place their children in the care of their competent teachers again for the stimulation and learning that children so desperately need," said Marisa Engelbrecht, sector head of the Solidarity Occupational Guild for Social Workers.

Safe environment, feeding schemes

"What is even more reassuring, is that these children will now be in a safe environment again and that the children dependent of feeding schemes will once again be able to learn and develop optimally with food in their stomachs."

The occupational guild and the SCS argued that the nursery schools and daycare centres in question are fully equipped and ready to receive preschoolers in the safe environment they have created and therefore there was no further reason to prevent children from returning to school.

"In terms of the ruling, the state has no choice but to allow the reopening of private nursery schools and daycare centres," said Anton van der Bijl, head of Solidarity’s labour law services.

"Teachers can resume their duties and the many staff members who also suffered as a result of this senseless silence on the part of the department can now look forward to work in a safe way that does not compromise health. This victory is not just a victory for private nursery schools and daycare centres as well as their learners; it is a victory for every South African who wants to stand up to the unfairness of the government’s lockdown measures," said Van der Bijl.

The Department of Social Development said it had taken note of the judgment granting independent ECDs permission to open "subject to the appropriate and/or prescribed safety measures being in place".

Spokesperson Lumka Oliphant said the department would make a further statement once it has fully studied the judgment.


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