Court order offers reprieve for some childcare centres, but the struggle is not over yet

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Early childhood centres have been severely affected by lockdown and some have closed.
Early childhood centres have been severely affected by lockdown and some have closed.

The ECD sector is staggering under the weight of nearly seven months of closure - and the silence and lack of support by the DSD has only confused the matter further. 

More than 30 000 Early Childhood Development centres were severely affected by the Covid-19 lockdown, and some of them have permanently closed. 

More than 176 000 jobs are at risk of being lost due to lack of financial assistance to pay the teachers, housekeepers, security personnel, and just the normal running costs associated with a childcare centre.

The ECD sector is one of a few sectors in South Africa who did not receive any form of Covid-19 financial relief from the government. 

After no response from the Minister of the Department of Social Development, Lindiwe Zulu, a nationwide peaceful protest followed in August. Again the DSD did not respond, and SA Childcare Association. Along with seven other applicants, sued the minister of Social Development along with the MECs of eight provinces - excluding the MEC in the Western Cape.

Read: The silence where ECD centres are concerned is very loud

Constitutional duties

The applicants sought an order to force the Minister and the MECs to fulfil their constitutional duties to uphold the right to life, nutrition, social services, education, and the enhancement of development, by paying subsidies to indigent nursery schools across the country. 

Against this tragic backdrop, the DSD also opted to withhold subsidies from the ECD centres who need it most.

In effect, this left more than 700 000 children who used to receive their only meal of the day at their ECD centre starving and neglected.

By contrast, the Western Cape activated the kitchens at ECD centres during lockdown to ensure that poor children didn't go hungry. The provision of food is an essential service that should never have been withheld, especially from children, at any stage of the lockdown.

Ordered to pay 

Finally, the Minister and the MECs have been brought to account for this neglect by an order declaring that they have failed in their constitutional duties to vulnerable children and caregivers and must pay 100% subsidies to funded ECD centres for the duration of the lockdown's alert levels, whether they are operational or not, for the whole of the 2020/2021 financial year.

According to a media release by SA Childcare, North Gauteng High Court Judge Janse van Nieuwenhuizen made sure that this order would apply equally to centres which had signed service level agreements to receive the subsidies, as well as those who had not been able to sign them during the lockdown.

Should the MECs fail to make the payment without delay, and if the Minister fails to discharge her constitutional duty to ensure payment immediately, the judge left room for the applicants to approach the court again to enforce the order.

Such failure will also leave the Minister and the MECs open to an order of contempt of court.

Must read: Majority of ECD centres have still not reopened - Bogopane-Zulu

Dividing the ECD Sector 

The MECs put forward the view that only the ECD centres which were operational should receive the subsidies.

The Judge was not persuaded by this argument and expressed dismay that this, in turn, placed the ECDs in poor communities in the invidious position that they cannot open without receiving the subsidy, but without opening, they cannot receive the subsidy.

In the end, the very purpose of the subsidies, which is to provide for nutrition, care and learning opportunities to children in underprivileged societies, is once again circumvented.

She said "the predicament seems to have escaped the MECs or they simply do not care for the plight of poor young vulnerable children in their communities."

Intimidation and threats 

It has been alleged that DSD officials have intimidated and threatened ECD centres with closure, torn up NPO and partial care certificates and even frightened ECD centre owners/supervisors with jail time if they do not wait for a date from the President to re-open.

Judge Janse van Nieuwenhuizen urged the legal teams in the case to advise their clients that nothing stands in the way of reopening and that finally, the directions align with the judgment of Judge Fabricius in the High Court in July which enabled ECD centres to reopen.

The judge expressed her dissatisfaction with the Minister and the MECs for their persistent denial of their constitutional obligations throughout the proceedings by awarding a punitive costs order, which is rare for these kinds of matters.

Represented by Adv Anne Lize Lourens, and instructed by Van Wyk and Associates, SA Childcare's legal team on the case said this was not the end, "as we believe that government does not yet fully appreciate the fact that all the pre-school children in the sector are our future and deserve more support. There is still a myriad of statutory and practical obstacles to the proper functioning of the ECD sector, and we are committed to continuing fighting for this worthy cause".

Also read: 'The reality for everyone is different': ECD educators respond to Covid-19 safety protocols

Unpaid promises 

Parent24 spoke to C19 People's Coalition and an ECD Owner, Jennifer McQuillan, about what has happened since the judgement has been passed down in the high court.

McQuillan tells us that many children in rural and impoverished areas only receive a solid meal at their ECD Centre. 

She explained that many parents went back to work in Level 3, and young and vulnerable children were left unattended because their ECDs were not opened. The first case as she explains was to enable ECDs to reopen and despite winning, she says, many ECDs did not open as they depend on the Government grants to function.

She added that the DSD grant covers administration, training, and food/nutrition. Those grants were not given out to ECDs because the DSD claimed that ECDs did not open during lockdown, so no grants will be paid.

State subsidy was promised to ECDS, but it was never paid.

Without the state subsidy and ECD grant, McQuillan tells us that the ECDs can not afford to open, because of the extra costs involved with being compliant with Covid-19 protocols and procedures.

This new court judgement states that the DSD Minister has not been constitutional in her mismanagement of the ECD grants and subsidies, and they need to give these grants immediately, she says, adding "they need to give all the money owed retrospectively too."

Lastly, she said, "It's so sad that we have to take the Government to court so that they do what they constitutionally need to do."

Dividing the ECD Sector

ECD owner Julia told us that she is glad that the court case is won, but her business will not benefit from this subsidy.

She says that the court should have considered the un-funded day care centres and those centres who have been affected by lockdown. She added that it's so painful that only the funded ECD businesses were favoured in court.

Similarly, ECD owner Tsholofelo shared the same sentiments, "This is not fair. Covid-19 has affected all the ECDs, all the parents, we all need the relief funds."

She added that it is not fair that the minister and the MECs favoured the funded ECDs when there are so many non-funded ECDs in South Africa. The government must put all creches on a relief funding, she concluded.

Lashiwe from Vosloorus in Guateng, says that "for us non-registered ECD Owners, it still rough. We are not considered anyhow so the struggle will continue because the department has already divided us as the sector."

An ECD principal based in Johannesburg, Palesa Mojapelo said that ECDs are opened, but are struggling to pay their running cost. "If 2020 budget was already approved and paid by the minister before Covid-19, what is stopping them to pay out those subsidies?"

She added, "food prices have gone up, we are not operating on full capacity. These funds are needed. We are not funded by DSD, but nutrition we won't be getting funding this year because most schools are closed, we have fewer kids in our centre which is frustrating." 

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