The importance of litigating the right to access sufficient food: Equal Education v Minister of Basic Education

Abstract

The right to food is a universally recognised right with prominent importance in international and regional human rights instruments. However, giving effect to the right is far more complex than its recognition, with billions suffering from hunger globally. The Covid-19 pandemic has highlighted the importance of food security and the need to ensure access to safe and nutritious food. With the South African National School Nutrition Programme especially hard hit by the pandemic, an analysis of the Equal Education v Minister of Basic Education (Equal Education) case highlights the complexity of litigating the right to food and the need for strong jurisprudence to give effect to it. The indivisibility and interrelated nature of the right is explored and how it complicates its justiciability in providing recourse in South Africa and the continent at large.

Keywords:

• Right to food
• interrelated
• indivisible
• Covid-19
• structural inequality
• litigation

1. Introduction

With Covid-19, the entire world came to a complete halt, and an unprecedented state of chaos ensued exacerbating, access to sufficient food and food sources.¹ In response, the international community adopted various ways to manage the impact of Covid-19, with the World Health Organisation playing a key role in facilitating research-led strategies.² Although Africa is often referred to as underdeveloped, the African region seems to have coped better with the impact of Covid-19 compared with countries in the Global North.³ Factors that underlined this included institutional memory in preparation for public health emergencies such as Ebola and resistance to infection embedded in African genes.⁴ The African Union (AU) performed well in terms of response to the disease, and the work of the Africa Centres for Disease Control and Prevention (Africa CDC) was impactful despite operating with minimal resources.⁵

Domestically, Covid-19 prompted the South African government to act by declaring a state of disaster.⁶ It called for a five-tier alert-level plan to ensure a staggered response to the virus as infection levels would increase and decrease.⁷ The main priorities were the treatment of the disease once contracted and the promotion of social distancing as a measure to prevent transmission.⁸ Under each level, business enterprises, human interaction, and even the operation of schools were regulated. At its highest level, food security was a major issue. Many middle-class South Africans resorted to panic buying, which resulted in basic food supplies being sold out.⁹ It also prompted irregular consumer practises with the price hike of food, leading to the intervention of the Competition Commission.¹⁰

With people being confined to their places of residence during alert level 5, many South Africans did not receive any income and consequently lost their employment.¹¹ The high levels of unemployment, which was already at crisis levels in the country, became a further catalyst for poverty and crime. Based on this reality, the South African government responded by extending the social grants system to include the Social Relief of Distress Grant (SRD grant) with a monthly payment of R350 (equivalent to approximately USD18) to non-income-generating individuals who did not qualify for any other form of social assistance.¹² The grant appeared to be a solution in providing access to food to the most vulnerable as government food parcel distribution was marred with corruption and donor-led initiatives often led to expired food items being distributed.¹³ With the United Nations (UN) referring to extreme poverty as surviving on less than USD15 a day, it is evident that the SRD grant fell well below this indicator.¹⁴ The grant still left a great gap in being able to meet the most basic needs.¹⁵

Statistics reveal that one in ten people go hungry in South Africa, resulting in serious health and nutritional deficiencies.¹⁶ As of 2016, 27 per cent of the hungry were children with ailments ranging from growth stunting to obesity.¹⁷ Against this background, the Covid-19 pandemic added further complexity to the existing dilemma of accessing food and proper nutrition. Because of the tier-level response to Covid-19, schools were required to establish a routine where there would be rotational attendance to enable social distancing.¹⁸ This impacted the ongoing implementation of the National School Nutrition Programme (NSNP) as it would initially only be Grade 7 and 12 learners in attendance on a specific day that would benefit from the feeding scheme.¹⁹

The NSNP provides one nutritious meal a day during school term to all qualifying learners with the purpose of increasing their ability to learn, providing education on how to lead a healthy lifestyle, and promoting the development of school vegetable gardens. Although the programme is closely tied to education, it forms part of a wider policy initiative under the National Policy on Food and Nutrition Security that gives effect to the constitutional mandate to access sufficient food.²⁰

Equal Education, a non-governmental organisation advocating for quality and equality in the South African education system, contacted the Minister of Basic Education (Minister) requesting that the NSNP be resumed for all qualifying learners and not only the Grade 7 and 12 learners physically attending school.²¹ The Minister failed to comply with the request, and the High Court was approached on an urgent basis to compel the full implementation of the programme to all qualifying learners, regardless of whether they attended school or not.²²

The judgment is one of few that has directly dealt with the right to food and basic nutrition protected in the Constitution of the Republic of South Africa, 1996 and provides important insight into how the court considered the application and content of these rights.²³ An analysis of the judgment highlights the complexity of litigating the right to food as an individual rights claim framed within the context of food security. The discussion will question whether the interrelated and indivisible nature of human rights could establish a hierarchical interpretation of rights in relation to multiple rights claims. Although the purpose of the analysis is not to focus on South Africa’s socio-economic rights adjudication in general, important insights are drawn on how the body of jurisprudence is shaping litigious claims concerning these rights and shaping our courts’ interpretive responses. Despite extensive hunger and malnutrition, the right to food has not become a pertinent issue over which to mobilise and litigate,²⁴ and it is important to understand the complexities as to why in realising the right within a global and regional framework.

2. The right to food: importance and context

The right to food has been recognised as a core fundamental right in several international and regional instruments. The Universal Declaration of Human Rights (UDHR),²⁵ Covenant on Economic, Social and Cultural Rights (CESCR),²⁶ and Universal Declaration on the Eradication of Hunger and Malnutrition²⁷ guarantees everyone with the right to a standard of living adequate for health and well-being, which includes access to food.

Article 11(2) of the CESCR recognises the immediate and urgent steps that need to be taken by states to ensure that the right to freedom from hunger and malnutrition is prioritised and promoted. Likewise, art 1 of the Universal Declaration on the Eradication of Hunger and Malnutrition states that every person is entitled to the right to be free from hunger and malnutrition to fully develop and maintain their physical and mental capabilities. In the same context, the United Nations Committee on Economic, Social, and Cultural Rights (CESCR Committee), the body responsible for monitoring the implementation of the CESCR, has stated that the core content of the right to adequate food implies its availability in quantity and sufficiency to satisfy the dietary needs of an individual, including being free from adverse substances, and being acceptable within a given culture.²⁸

The African Union’s (AU) goals and priority areas of Agenda 2063 emphasise a high standard of living, quality of life and well-being for all citizens.²⁹ In confirmation, the AU declared 2022 the year of nutrition, which strengthens its commitments to end malnutrition in all its forms.³⁰ It underlined the need for effective regional frameworks for the implementation of multi-sectoral nutrition plans of action, budget allocation and expenditure tracking systems, and the monitoring of nutrition interventions and food security.

Although the African Charter on Human and Peoples’ Rights (Charter) does not explicitly recognise the right, its realisation is central to several rights in the Charter. Article 16 of the Charter stipulates that every person has the right to enjoy the best attainable state of physical and mental health. In the same manner, the Charter places an obligation on state parties to take the necessary measures to protect the health of their citizens.³¹ The Charter further confirms that ‘all peoples have the right to economic, social, and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage’ of humankind.³²

The Social and Economic Rights Action Centre (SERAC) and Centre for Economic and Social Rights (CESR) v Nigeria (SERAC)³³ case heard by the African Commission is illustrative of the interdependent and interrelated nature of human rights, with the right to food seen as integral in achieving explicit rights provided for in the Charter. In this case, it was alleged that the Nigerian government caused environmental degradation and health problems to the Ogoni land as a result of oil production through a state-owned oil company.³⁴ The applicants argued that by virtue of polluting the soil and water, the Ogoni indigenous community food resources were depleted, resulting in malnutrition and starvation.³⁵ It was further argued that the right to food is implicit in the Charter and inseparably linked to human dignity, which is essential for the enjoyment and fulfilment of other rights such as health, education, work and political participation.³⁶

The African Commission found that the Nigerian government was under a duty to improve food production and guarantee its access to vulnerable citizens.³⁷ In the same context, it was highlighted that the minimum core of the right to food requires that the state not destroy or contaminate food sources.³⁸ The African Commission found that the Nigerian government violated not only explicitly protected rights but also the right to food, which is indirectly guaranteed.³⁹

With the adoption of the 2010 Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (the Nairobi Principles),⁴⁰ the African Commission confirmed the finding of the SERAC case with specific reference to it, stating that although the Charter does not expressly protect the right to food, it is inherent in the Charter’s protection of the rights to life, health and economic, social and cultural development.⁴¹

The Convention on the Rights of the Child (CRC),⁴² and the African Charter on the Rights and Welfare of the Child⁴³ further provide, that state parties are under an obligation to provide nutritious food and must take appropriate measures to fight against diseases and malnutrition. In 2012, the African Committee of Experts on the Rights and Welfare of the Child found in a communication submitted before it by the Centre for Human Rights (University of Pretoria) and La Rencontre Africaine Pour Defense Des Droits De l’Homme (Senegal) that the Senegalese government was responsible for Quranic schools, where children were forced to beg and lived in deplorable conditions.⁴⁴ The Commission specifically mentioned that the children’s severely malnourished state and constant hunger violated their right to survival and development and their right to health and health services protected in the Charter on the Rights and Welfare of the Child.⁴⁵

The interrelated nature of the right to food highlighted in the SERAC and Centre for Human Rights cases illustrate that the protection of the right to food guaranteed in these international and regional instruments should be viewed within the context of food security. As defined by the World Food Summit Plan of Action, food security refers to ‘when all people, at all times, have physical and economical access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life’.⁴⁶ Food security is further associated with food systems characterised by interactions between human and natural systems, which are referred to as socio-ecological systems.⁴⁷ These systems are again influenced by activities such as food production, processing, packaging, and retail, which create challenges in regulating and governing the right.⁴⁸ It is within this multifaceted framework that we have to question if litigation on the right could have any meaningful impact on its realisation, considering its complexity.

3. Interpreting the right to basic nutrition and food in South Africa: Equal Education v Minister of Basic Education

Hunger is often far more than just a shortage of food but a matter of systemic inequality influenced by various factors.⁴⁹ Although South Africa is generally regarded as a food-secure country, individual food security remains a challenge.⁵⁰ Disparities in food security can be ascribed to South Africa’s long-standing socio-economic inequalities and unemployment, and with food security tied to the power to purchase, several households are unable to afford a nutritionally acceptable diet.⁵¹

When contextualising the right to food, the South African Constitution is a significant point of departure. The right to food is enshrined in s 27(1)(b) of the Constitution and provides for everyone to have access to sufficient food, with s 28(1)(c) ensuring that every child has a right to basic nutrition. While formal equality merely imagines that everyone has the right to food, substantive equality speaks to the tangible reality of providing access to nutritional food for all. The ‘equal opportunity’ element in s 9(2) of the Constitution resonates with substantive equality as it highlights resources being apportioned between the haves and the have nots in society, heightening the need to address systemic inequalities.⁵² Despite individualised constitutional protection, there is no specific overarching legislative and policy framework that deals with food and food security and no specific national department that is responsible for its implementation.⁵³

Although the right to food features prominently in the Constitution, it is rarely directly relied upon, and its fulfilment and protection are often realised through other rights.⁵⁴ Danie Brand argues that:

In short, the right to food is more or less embedded in other rights – measures to give effect to it are intertwined with measures to give effect to other rights, and its violation is often inseparable from the violation of a range of other rights. As a consequence, the right to food is seldom directly protected, whether through legislation or adjudication.⁵⁵

Integral to considering the fulfilment of the right in South Africa is the relationship between the right to sufficient food and the right to social security, which is also protected in s 27 of the Constitution.⁵⁶ It could be argued that the South African government is fulfilling its obligations in relation to the right by providing individuals with the means to purchase it.⁵⁷ However, with several competing demands on these grants, it is unlikely that they facilitate food security.⁵⁸ Busisiwe Moyo and Anne Marie Thow refer to the South African food system as dominated by a handful of powerful corporations aligned to global capital interests.⁵⁹ The power these corporations wield have a significant impact on the quality and types of food that are available especially to poor households.⁶⁰

In its 2018 response to South Africa’s country report on the implementation of the Covenant, the CESSR Committee notes with concern the high incidence of food insecurity and malnutrition in the country.⁶¹ It particularly notes that the child support grant (then at R400 per month) is well below the UN food poverty indicator and recommended an increase in the grant amount. The Covid-19 pandemic starkly illustrated the inefficiency of the grant system, which necessitated the roll out of the SRD grant and further grant increases to fend off large-scale hunger. Although the child support grant has increased to R510 per month, it is still well below the UN poverty indicator.⁶²

The CESCR committee further highlighted as problematic the lack of a clear and consolidated legislative and policy framework pertaining to the right. It recommended that South Africa adopt a specific legislative framework to protect the right to adequate food and develop a national food and nutrition security strategy.⁶³ Despite the nature of the right being indivisible, interdependent, and irrelated, its realisation in South Africa is independently measured, analysed, and targeted.⁶⁴

The Equal Education case is one of few judgments in which the right to basic nutrition and access to food has been directly relied on and provides important insights in relation to the interpretation of these rights. With the staggered implementation of the NSNP programme during lockdown, Equal Education argued that the Minister and Members of the Executive Councils of eight provinces (hereinafter collectively referred to as the Minister) breached their constitutional and statutory duty to ensure that the NSNP provides daily meals to qualifying learners, whether attending school or studying away from school.⁶⁵ Equal Education based their arguments on s 29(1)(a) of the Constitution, the right to a basic education, s 28(1)(c) the right of every child to basic nutrition, and the overarching right in s 27(1)(b) that everyone is entitled to sufficient food and water.⁶⁶ They sought declaratory relief and a supervisory interdict until the order was discharged.⁶⁷

The Minister, relying on the word ‘refuse’ in Equal Education’s heads of argument, argued in very short heads (six pages in total) that the Minister never refused to roll out the NSNP, which was implemented through a phased approach.⁶⁸ They further argued that Equal Education’s rights claim to basic nutrition was unfounded as the right at issue was education.⁶⁹

From the outset the court rejected the Minister’s arguments, referring to their ‘semantic defence’ as being ‘bad in law and contrived’.⁷⁰ The court highlighted that it focussed on the totality of evidence and would not be pinned down by a specific word choice.⁷¹ In considering the impact of Covid-19 on the NSNP, the court referred with approval to the Seekings Report, which analysed the efficacy of the government’s emergency expansion of social protection during lockdown.⁷² The report noted that social-grant reforms failed to alleviate the plight of the poor during the lockdown and that the suspension of the NSNP had a devastating impact on poor children.⁷³ The court rejected the argument that the right to food was merely incidental to the right to education and found that in terms of state policies these rights were inextricably linked:

On the Departments own documents the stance that the nutritional aspect of the NSNP is just a by-product of their duty to educate is simply wrong. The Department’s own policy statements reflect basic nutrition as a component of basic education. State policy is instructive on the content of the right to education and in the policies the provision of basic nutrition as component of basic education. For many years this Department has taken on the duty to educate children in terms of s 29(1)(a) and the right to basic nutrition (s28(1)(c)) through the NSNP.⁷⁴

The court confirmed that the state not only bears positive obligations with respect to the rights of the Bill of Rights but also negative obligations to not impair access to these rights.⁷⁵ Therefore, the Minister could not detract from its constitutional and statutory duties, which they were already fulfilling. The court declared that all qualifying learners under the NSNP are entitled to receive a daily meal irrespective of whether they have resumed classes or not.⁷⁶ Specifically it ordered that:

[t]he first respondent is under a constitutional and statutory duty to ensure that the NSNP provides a daily meal to all qualifying learners, to ensure the proper exercise of the rights of learners to education and to enhance their learning capacity, whether they are attending school or studying away from school as a result of the Covid-19 pandemic.⁷⁷

With the confirmation that the right to basic nutrition is key to fulfilling the right to education, the question remains whether the court missed an opportunity to recognise the right to basic nutrition as standalone right. We know that the functioning of courts is selective and that they often deal with narrowly defined factual scenarios that might not adequately address the complexity of rights that are multifaceted with broad policy impact.⁷⁸ However, we also know the importance of litigation to provide a voice to right holders and to protect the rights of the most vulnerable in ensuring accountability.⁷⁹

South Africa’s socio-economic rights jurisprudence is well established, with the Constitutional Court developing an interpretive approach that requires policies that give effect to these rights to be reasonable and to be implemented in a fair manner.⁸⁰ This approach has been starkly criticised by scholars for its seeming adoption of administrative law principles, which has failed to provide any substantive content to these rights.⁸¹ Specifically, the remedies that have flowed from these decisions have not rendered any real concrete benefits to successful applicants.⁸² Having analysed the jurisprudence of the Constitutional Court, Stuart Wilson and Jackie Dugard comment that future litigation concerning socio-economic rights should focus on concrete entitlements contained in legislation/policy as the Court is seemingly more perceptive to provide content to these rights when negatively infringed.⁸³ Addressing the negative infringement of rights could provide future definitions for claims seeking to impose positive obligations on the state.⁸⁴ Equal Education did frame its rights claims based on a specific legislative/policy duty that enabled a remedy with immediate impact.

Considering whether the court should have provided more interpretive content to the right to basic nutrition as standalone right, highlights the complexity of litigating multiple socio-economic rights claims with the ensuant risk of a possible hierarchical interpretation of rights being established.

Whilst the litigious strategy of Equal Education is indicative of the interrelated and interdependent nature of human rights, it also restricts the development of needed content and interpretation of a specific right that could lead to watered down jurisprudence in relation to specific rights protection.⁸⁵ Focus on the right to basic nutrition could have included consideration as to what food would be regarded as nutritious and adequate for consumption by school children within the NSNP programme. The judgment highlights the necessity of carefully considering multiple rights-based claims when litigating socio-economic rights in the public interest. Although disappointing that the final order did not reflect specific reference to the right to basic nutrition and the right to food, the judgment did ensure that the NSNP resumed for all qualifying learners, having a significant impact on vulnerable learners both in enabling their education and providing access to a daily meal.

4. Conclusion

Covid-19 has exacerbated hunger and limited access to a safe nutritional diet. This has severely impacted children of school-going age and threatened anti-hunger initiatives such as the South African NSNP during lockdown. The CESCR Committee has confirmed that the right to food is realised when every person alone or in a community with others, has physical and economic access to adequate food and means for its procurement.⁸⁶ Therefore, the right to adequate food cannot be interpreted in isolation or in a narrow and restrictive sense. In the same manner, the right to adequate food must be realised progressively, and states have a core obligation to take the necessary measures that mitigate and alleviate hunger even in times of natural or man-made disasters as indicated in the SERAC case. The international and national legal framework of the right to food assures us that the right is legitimate and justiciable.

However, despite its recognition, the judicial enforcement of the right to food remains complex. Although the Equal Education case presented South Africa with an opportunity to recognise the right to food and basic nutrition in its own right, the final order fell short as it emphasised the provision of meals in realising the right to education. But the case has presented an opportunity to recognise the importance of litigating complex rights and the continued importance of the judiciary in addressing systemic inequalities:

[l]egal rights present some of the few effective tools by which to confront the denial of human needs. The legal process, moreover, holds the potential to enhance participation of marginalised sectors of society in its affairs, and to insist that their interests be afforded due weight in decisions, policies and processes that impact on their lives and on the exercising of their rights. Legal rights can therefore be empowering, equalising, constructive and transformative, while legal processes, regardless of their outcomes, can ‘open up new possibilities for politics’.⁸⁷

The Equal Education case highlighted that impactful gains could be made by focusing on the negative obligations of socio-economic rights with a structured remedy that ensures state accountability. This is not to say that litigators should shy away from litigating the positive obligations of the right should the context allow, but such litigation would require sensitivity to the wider context of food security. Further highlighted by the Equal Education judgment is that litigators should tread cautiously when framing multiple rights claims as a possible hierarchical interpretation could be attached to them. This is evident through the Minister’s arguments in Equal Education, which interpreted the right to education as a more relevant and stronger right, disregarding the right to basic nutrition.

As the right to access food and building nutritional resilience in Africa is among the pressing issues on the global agenda,⁸⁸ recognising the complexity of the right and the need for its enforcement could ensure future accountability and the implementation of frameworks that propagate its realisation.

Disclosure statement

No conflict of interest was declared by the authors.

Additional information

Notes on contributors

Amanda Spies

Amanda Spies, associate professor, Department of Public Law, Nelson Mandela University, Gqeberha, South Africa

Leah Ndimurwimo

Leah Ndimurwimo, associate professor, Department of Criminal and Procedural Law, Nelson Mandela University, Gqeberha, South Africa

Nicholene Nxumalo

Nicholene Nxumalo, lecturer, Department of Public Law, Nelson Mandela University, Gqeberha, South Africa

Notes

1 According to the World Health Organization, the infectious coronavirus disease is caused by the virus known as SARS-CoV-2, which spreads via liquid particles between humans. Its side effects in symptomatic individuals range from fever to respiratory issues <https://www.who.int/health-topics/coronavirus#tab=tab_3>.

2 World Health Organization ‘Considerations for implementing and adjusting public health and social measures in the context of Covid-19’ (14 June 2021).

3 B Fagbayibo & UN Owie ‘Crisis as opportunity: Exploring the African Union’s response to Covid-19 and the implications for its aspirational supranational powers’ (2021) 65 Journal of African Law 208.

4 Ibid.

5 Ibid. The Africa Centres for Disease Control and Prevention positioned itself as the official regional reference point for Covid-19 related information and collaborative initiatives. It provided support to African Union member states by promoting effective medical practices from diagnosis to treatment of the public across the region. The main objective was to minimise economic and social disruptions while preventing fatalities from the disease; see Africa Centres for Disease Control and Prevention ‘Africa joint continental strategy for Covid-19 outbreak’ (5 March 2020).

6 The Disaster Management Act 57 of 2002; South African Government ‘Regulations and guidelines – coronavirus Covid-19’.

7 Ibid.

8 Ibid.

9 J Lappeman ‘Panic buying in the wake of Covid-19 underscores inequalities in South Africa’ (22 March 2020) The Conversation.

10 A Makinana ‘Commissions flooded with Covid-19 related price hike complaints’ (19 May 2020) Times Live.

11 People could only leave their places of residence to obtain essential goods, collect a social grant or obtain medical treatment; see P Kruger, K Moyo, P Mudau, M Pieterse & A Spies ‘Republic of South Africa: Legal response to Covid-19’ in J King & O Ferraz (eds) Oxford Compendium of National Legal Responses to Covid-19 (2021) para 57.

12 The Social Relief of Distress Grant is administered in terms of s 32 of the Social Assistance Act 13 of 2004. To qualify for the grant you need legal residency in South Africa, be between eighteen and 60 years of age, satisfy the means test to prove monthly income of below R624, be unemployed, unable to take care of yourself financially and receive no other grant social or subsistence from the government.

13 P Mudau ‘The implications of food-parcel corruption for the right to food during the Covid-19 pandemic in South Africa’ (2022) 23 Economic and Social Rights in South Africa 4; T Magubane ‘Msunduzi Municipality left red-faced after handing out expired porridge to needy families’ (15 April 2020) Independent Online.

14 United Nations Sustainable Development Goals ‘Goal 1: End poverty in all its forms everywhere’.

15 T Matthews, C Groenewald & B Moolman ‘It is a lifeline but it is not enough: The Covid-19 social relief of distress grant, basic income support, and social protection in South Africa’ (2022) Black Sash.

16 I Labuschagne ‘South Africa’s hunger problem is turning into a major health crisis’ (1 June 2022) News24.

17 Ibid.

18 M Dayimani ‘Covid-19: Cabinet to announce end to rotational classes at schools, as DA approaches court’ (26 January 2022) News24.

19 Department of Basic Education ‘National school nutrition programme’; Kruger et al (note 11 above) para 77.

20 Department Agriculture, Forestry and Fisheries ‘National policy on food and nutrition security for the Republic of South Africa’ Government Gazette 37915 no 637; MCA Wegerif, TN Msimango & N Vilakazi ‘School food and the promotion of a more just and equitable food system in South Africa’ in D Ruge, I Torres & D Powel (eds) School Food, Equity and Social Justice (2022) 140, 141.

21 ‘Applicant’s heads of argument’ Equal Education v Minister of Basic Education (22588/2020) 2020 ZAGPPHC 306 ZA para 6.

22 Equal Education v Minister of Basic Education 2021 (1) SA 198 (GP) (Equal Education).Tertiary institutions remained unscathed since they adopted a virtual solution to teaching and learning and the National Student Financial Aid Scheme (NSFAS) continued to pay registered students their subsistence allowance, South African Government ‘NSFAS on student allowance during Covid-19 Coronavirus lockdown’ (20 April 2020).

African Union ‘2022: The year of nutrition’.

23 Sections 27(1)(b) and 28(1)(c) of the Constitution of the Republic of South Africa, 1996.

24 J Dugard ‘Testing the government’s emergency relief mechanism: What happens when poor households attempt to access the Social Relief of Distress Grant? in S Fukuda-Parr & V Taylor (eds) Food Security in South Africa: Human Rights and Entitlement Perspectives 190, 191.

25 Article 25(1) of the Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A) (UDHR).

26 Article 11(1) of the Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1676).

27 Article 1 of the Universal Declaration on the Eradication of Hunger and Malnutrition (adopted 16 November 1974 UNGA Res 3180 (XXVVIII).

28 The United Nations Committee on Economic, Social, and Cultural Rights, General Comment No. 12: The Right to Adequate Food (12 May 1999).

29 Goals 1 and 3 focus on issues relating to income, jobs and decent work, poverty, inequality and hunger, social security, and protection including protection for persons with disabilities modern and liveable habitats and basic quality services, health, and nutrition.

30 The 2022 Year of Nutrition was launched during the 35th Ordinary Session of the AU Assembly in February 2022 to celebrate the gains made in nutrition in Africa.

31 Article 16(2) of the African Charter on Human and Peoples (adopted 27 June 1981, entered into force 21 October 1986) (Banjul Charter).

32 Ibid art 22.

33 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria ACHPR/COMM/A044/1 of 27th May 2002 (SERAC).

34 Ibid 42.

35 Ibid 9.

36 Ibid 66.

37 Ibid 69.

38 Ibid 45. The African Commission was of the view that the state must refrain from interfering with the enjoyment of all right-bearers’ fundamental rights, which include respecting the free use of individual and group-owned resources.

39 SERAC (note 33 above) 65.

40 African Commission on Human and Peoples Rights ‘Principles and guidelines on the implementation of economic, social and cultural rights in the African Charter on Human and People’s Rights’ (2010).

41 Ibid 83.

42 Articles 24(2)(c) and (e), 27(3) of the Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) (CRC).

43 Article 20(2)(a) of the African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999).

44 The Centre for Human Rights (University of Pretoria) and La Rencontre Africaine Pour Defense Des Droits De l’ Homme (Senegal) v Government of Senegal decision by the African Committee of Experts on the Rights and Welfare of the Child No 003/Com/001/2012.

45 Ibid 43-45 and 53; arts 5 and 14 of the African Charter on the Rights and Welfare of the Child.

46 World Food Summit Rome Declaration on World Food Security and World Food Summit Plan for Action (1996).

47 LM Pereira & S Ruysenaar ‘Moving from traditional government to new adaptive governance: The changing face of food security responses in South Africa’ (2012) 4 Food Security 41, 43.

48 Ibid.

49 V Zambrano ‘Right to food: An emerging human rights jurisprudence?’ (2019) 57 Revista Juridica 23, 25.

50 Pereira & Ruysenaar (note 47 above) 44.

51 SB Kushitor, S Drimie, R Davids, C Delport, C Hawkes, T Mabhaudhi, R Slotow & LM Pereira ‘The complex challenge of governing food systems: The case of South African food policy’ (2022) 14 Food Security 1, 2.

52 Section 9(2) of the Constitution states: ‘Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken’.

53 D Brand ‘Between availability and entitlement: The Constitution, Grootboom and the right to food’ (2003) 7 Law, Democracy & Development 1, 11.

54 Sections 25 and 27(1)(c) of the Constitution; SA Karim & P Kruger ‘Unsavoury: How effective are class actions in the protection and vindication of the right to access to food in South Africa (2021) 37 South African Journal on Human Rights Law 59, 60.

55 D Brand ‘The right to food’ in D Brand & C Heyns (eds) Socio-economic Rights in South Africa (2005) 155, 164.

56 Section 27(1)(c) of the Constitution states, ‘Everyone has the access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance’.

57 Brand (note 55 above).

58 Dugard (note 24 above) 191.

59 BH Moyo & A Thow ‘Fulfilling the right to food for South Africa: Justice, security, sovereignty and the politics of malnutrition’ (2020) 11 World Nutrition 112, 118.

60 Kruger & Karim (note 54 above) 60.

61 Committee on Economic, Social and Cultural Rights ‘Concluding observations on the initial report of South Africa’ (23 October 2018) CRPD/C/ZAF/CO/1.

62 Department of Social Development ‘Increase in respect of social grants’ (Notice 3208) Government Gazette 48321 (28 March 2023).

63 Committee on Economic, Social and Cultural Rights (note 61 above) 57 (d).

64 Moyo & Thow (note 59 above) 117.

65 Note 22 above 9; no relief was sought against the Member of the Executive Council of the Western Cape, as the provincial government in this province committed to provide a daily meal to all qualifying learners whether attending school or not.

66 ‘Applicant’s heads of argument’ (note 21 above) para 82.

67 Note 22 above para 4.

68 Ibid para 8; MM Oosthuizen SC, ‘Respondents heads of argument’ Equal Education (note 21 above) para 2.

69 Equal Education (note 22) para 35.

70 Ibid para 16.

71 Ibid para 14.

72 Ibid para 22; J Seekings ‘Failure to feed: State, civic society and feeding schemes in South Africa in the first three months of Covid-19 lockdown March to June 2020’ (July 2020) Centre for Social Sciences Research working paper 445.

73 Equal Education (ibid) para 26.

74 Ibid paras 40–41.

75 Ibid para 44.

76 Ibid para 103.2.

77 Ibid para 103.3.

78 C Courtis ‘The right to food as a justiciable right: Challenges and strategies’ (2007) 11 Max Planck Yearbook of United Nations Law 317, 319.

79 Ibid.

80 S Wilson & J Dugard ‘Taking poverty seriously: The South African constitutional court and socio-economic rights’ (2011) 22 Stellenbosch Law Review 664, 664.

81 S Wilson & J Dugard ‘Constitutional jurisprudence: The first and second waves’ in M Langford, B Cousins, J Dugard & T Madlingozi (eds) Socio-economic rights in South Africa: Symbols or Substance (2013) 35.

82 M Pieterse ‘Procedural relief, constitutional citizenship and socio-economic rights as legitimate expectations’ (212) 28 South African Journal on Human Rights 359, 361.

83 Wilson & Dugard (note 81 above) 55.

84 Ibid.

85 Courtis (note 78 above) 329.

86 Article 11 of the CESCR.

87 M Pieterse Rights-based Litigation, Urban Governance and Social justice in South Africa: The Right to Joburg (2017) 1.

88 The African Commission on Human and Peoples Rights Resolution 514 on the Right to Food and Building Resilience in Nutrition Across Africa – ACHPR/Res 514 (LXX) and Final Communique of the 71 Ordinary of the African Commission on Human and Peoples’ Rights virtual session 21 April–13 May 2022, where the European Union Special Representative for Human Rights stressed the importance of protection of the right to food building nutritional resilience in Africa.