• Equal Education wants government to feed all children through the National School Nutrition Programme, irrelevant of whether they have returned to school or not.
• Government says they are already working to implement the feeding scheme and an order is not necessary.
• EE wants a declaratory order to remind them of their duties in relation to feeding children who qualify under the NSNP.

Millions of children, who are fed through the National School Nutrition Programme (NSNP), should be given their daily meal, irrespective of whether their grade has been allowed to return to school.

This was the declaratory order sought by Equal Education (EE), who, in the Gauteng High Court in Pretoria on Thursday argued that it's government's duty to ensure meals were provided to all pupils who qualified to benefit from the nutrition programme.

EE approached the High Court on an urgent basis, after the primary and secondary schooling system started opening, with Grade 7 and 12 pupils being the first to return to school on 8 June.

When the hard lockdown came into effect, NSNP was suspended, which resulted in widespread hunger, advocate Geoff Budlender SC, for EE argued.

There was an agreement by the Minister of Education that once pupils returned to school, the NSNP would be resumed for all pupils, including those whose grades had not yet been allowed to return to school.

However, Budlender argued that this was not the case, and on 8 June when pupils from Grade 7 and 12 returned to school for the first time since lockdown, other pupils, who had not yet returned to school, were not provided with meals.

Budlender told the court that there was a failure and a refusal on the part of the Minister of Education to resume the nutrition programme, which resulted in around three to four million children being deprived of their school meal every day.

He argued that the provincial departments of education as well as the minister continue to fail to provide meals to school children who qualify.

Budlender added that the defence to application was that the department did not refuse to provide meals and that there was a working plan in place.

"It is cynical, it is callous and it's time to put an end to it. It demonstrates a failure of accountability to say that they didn't refuse. It's time to put a stop to this and put a stop to the millions of children going hungry every day," Budlender said.

Advocate Tembeka Ngcukaitobi SC, for EE, argued that children in need who qualified for the nutrition programme - that "the one meal they were guaranteed was taken away".

On a legal point, Ngcukaitobi argued that the right to education, and the right to nutrition were interdependent and indivisible.

He further told the court that such rights cannot be postponed or suspended.

Advocate Marius Oosthuizen for the minister, conceded that children did not receive their meals under the nutrition programme, but argued that the application wasn't necessary as work was being done to address the problem.

"Yes, they (meals) haven't delivered, yes there are a lot of children on the ground that haven't received their meals, but that doesn't mean we are sitting back and doing nothing," Oosthuizen said.

"We are working day and night to address this problem as soon as possible."

Oosthuizen further contended that a court order would not help as the Department of Education was already working, planning and addressing the problem.

He added that to say there was a refusal to provide meals and attribute this failure to the minister was incorrect.

"We realise on the ground that there hasn't been delivery, but on paper, we show that we are addressing the issue on the ground."

"The matter should be dismissed."

Judgment has been reserved.