Evaluating the South African National School Nutrition Programme during school breaks against the core principles and the right to education the Convention on the rights of the child

Abstract

In this paper, we critically analyse the National School Nutrition Programme (NSNP) for learners during school breaks in South Africa, focusing on evaluating the NSNP’s adherence to the core principles of the Convention on the Rights of the Child (CRC) as well as the right to education captured in the CRC. The paper employed a desktop research methodology, examining the CRC and numerous scholarly articles, legislation, case law, policy reports, and governmental documents. The results suggest that the NSNP demonstrate efficacy in upholding learners’ rights by means of respect, protection, and promotion during academic periods yet exhibit inadequacy during non-academic intervals. The absence of explicit provisions for uninterrupted nutritional assistance during school breaks within the NSNP may hinder the realisation of learners’ fundamental rights to adequate nourishment. In addition, it can be observed that the NSNP did not provide clear directives that promote the active participation of learners in decision-making processes related to their nutritional welfare during school breaks. The results above highlight the necessity of implementing a thorough child rights-based approach within the NSNP to guarantee the observance, safeguarding, advancement, and realisation of learners’ rights in line with the CRC core provisions throughout all seasons.

Keywords:

• child rights-based approach
• Convention on the Rights of the Child (CRC)
• National School Nutrition Programme (NSNP)
• school breaks
• South African learners
• South Africa
• Core principles of the CRC

PUBLIC INTEREST STATEMENT

This paper delves into the National School Nutrition Programme (NSNP) in South Africa, with a focus on its impact during school breaks. Using an extensive research approach, it assesses how well the NSNP aligns with the principles of the Convention on the Rights of the Child (CRC) and the right to education. The findings suggest that while the NSNP effectively supports students during the school year, it falls short during breaks. This gap in providing continuous nutritional support may hinder children’s right to proper nourishment. Additionally, the paper reveals a lack of clear guidance for involving students in decisions about their nutrition during breaks. In essence, this study highlights the need for a child rights-based approach in the NSNP to ensure that children’s rights are upheld year-round, in line with CRC principles.

1. Introduction

According to sections 27(1) and (2) of the Constitution of the Republic of South Africa (Constitution) (RSA Republic of South Africa, 1996), everyone has the right to have access to healthcare services (s 27(1)(a)) and sufficient food and water (s 27(1)(b)). In terms of 27(2) of the Constitution, “the state must take reasonable legislative and other measures, within its available resources”, to ensure the realisation of the right to adequate food and water (RSA (Republic of South Africa), 1996. s 27). In addition to section 27, that is applicable to everyone, section 28(1)(c), adds an additional layer of protection for children and provides that: “Every child has the right to basic nutrition, shelter, basic health care services and social services.” The main difference between these two provisions is that section 27 has an internal qualifier which obliges the state to provide everyone with access to sufficient food and water, through appropriate legislative and other measures within available resources. However, as far as children is concerned, section 28(1)(c) does not have a corresponding qualifying provision which implies that children’s right to basic nutrition is an immediately realisable right which can only be limited in terms of section 36, the limitation clause of the Constitution (cf. Governing Body of the Juma Musjid Primary School and Others v Essay NO and Others (Centre for Child Law and Another as Amici Curiae (2011) on the immediately realisable nature of socio-economic rights without internal qualifiers)

The Constitution (RSA, 1996) provides in section 39 that when the rights contained in the Constitution is interpreted one must consider international law. The subject of children’s human rights has been a prominent topic in various academic debates, as evidenced by the attention given to it in both international law and domestic law which includes the Convention on the Rights of the Child (CRC) (Assembly, 1989), the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966), the African Charter on the Rights and Welfare of the Child (ACRWC) (1990) and The Universal Declaration of Human Rights (UDHR) (1948); Republic (1996); Chirwa (2018). The NSNP is an attempt to give effect to the South African Constitution’s guarantees to ensure access to food for everyone (section 27) and basic nutrition for children (section 28). In light of section 39 of the Constitution it is therefore prudent to determine whether the NSNP meets the international human rights standards. For purposes of this article the focus will be on the compliance of the NSNP with the cor principles and the right to education of the CRC only.

2. The South African School Nutrition Programme

The NSNP (RSA. Department of Basic Education DBE, 2009) was previously known as the Primary School Nutrition Programme (PSNP), which was instituted in 1994 in South Africa (Devereux et al., 2018). The PNSP was instituted to mitigate nutritional inadequacies among primary school-going children and augment their learning potential (Department of Basic Education, 2021; Devereux et al., 2018). According to the Department of Basic Education (DBE, 2021), the programme sustains learners on school days. The NSNP caters to a student population of over 9 million learners in quintile one to three schools, which includes secondary schools (Nkosi, 2020).

According to Adolphus et al. (2013), a significant correlation exists between nutrition and cognitive functioning, concentration, and academic performance. The NSNP plays a crucial role in advancing educational accessibility, especially for learners who come from underprivileged socio-economic backgrounds (Irmak, 2021). The NSNP’s impact on learners’ rights to education and fundamental nourishment during school hours has been extensively recorded in academic literature (Beardslee, 2008; Ismail et al., 2022; Kassu, 2023; Langsford, 2012; Spaull & Van der Berg, 2020).

This article is inspired by the realities that we witnessed with the closure of schools and the NSNP during the Covid pandemic and highlighted the plight of children from poor socio-economic backgrounds and illustrated their dependence on the NSNP to sustain them. The impact of the school closures had been so severe that Equal Education, a non-governmental organisation, had to approach the courts on an urgent basis to ensure the reinstatement of the NSNP for all learners, whether they attended school or not (Equal Education v Minister of Basic Education (Children’s Institute Amicus Curiae) (2020) (Equal Education case).

This led to the question whether the existing NSNP meets human rights standards since it provides learners in quintile one to three schools with a meal only while schools are open but not during school breaks. This issue is of utmost importance as children’s rights remain valid and enforceable even during school closures for vacation periods.

According to Borkowski et al. (2021), the NSNP may serve as the primary source of nutrition for numerous learners, particularly those hailing from socio-economically deprived backgrounds. The academic literature suggests that school breaks may present a noteworthy obstacle to the nutritional welfare of learners, which could have implications for their general health and academic performance (Cohen et al., 2021; Sinha et al., 2020)

This paper aims to examine the compliance of the NSNP with children’s rights during periods of school break, focusing on the four core rights and principles of the CRC as well as the right to education. Although the NSNP has played a crucial role in promoting the rights of learners during school days, the question remains whether the NSNP and the relevant guidelines should not be expanded to provide needy learners with basic nutrition during school breaks too. Comprehending this matter will furnish significant perspectives for policymakers, educators, and other relevant parties to augment the efficacy of the NSNP throughout the year and guarantee the preservation of learners’ rights at all times.

3. Material and methods

The methodology utilised in this paper involved a thorough and exhaustive examination and evaluation of pre-existing literature and associated materials, commonly referred to as desktop research (Nayak & Singh, 2021). The chosen research methodology is appropriate for the present paper, given that the objective was to evaluate the alignment of the NSNP with the four core children’s rights, and the right to education, contained in the CRC, an area that does not require gathering original data.

The paper was conducted by gathering data from a diverse array of secondary sources (Nayak & Singh, 2021). Academic databases, including JSTOR, Google Scholar, Springer, and EBSCOhost, were utilised to obtain peer-reviewed articles, policy reports, international law instruments, primary and secondary legal sources, and government documents. The paper centred on utilising data from the previous 10 years to ensure the pertinence and contemporaneousness of the results.

The process of gathering data was guided by specific search terms such as “NSNP”, “Constitutional rights”, “school learners”, “school nutrition”, “children’s rights”, “CRC”, and “school breaks”. The selection of documents was based on their pertinence to the research aim, the reliability of the sources, and the publication date. The NSNP were further elucidated by retrieving official documents from the Department of Basic Education’s website. A total of 66 documents were selected for the paper, comprising articles that underwent peer review, policy reports, government documents, and relevant legal sources.

The process of data analysis entailed comprehensive scrutiny of the gathered documents. Every document underwent a comprehensive review process, during which pertinent data was methodically extracted and documented. Thematic analysis was conducted on the documents with a specific focus on learners’ human rights, the NSNP, and their ramifications during school breaks (Myers, 2019).

The paper involved a comparative analysis of the NSNP to ascertain their compliance with the constitutional rights of children during school breaks. The results were synthesised to provide a comprehensive overview of the extent to which the NSNP uphold the principles of respect, protection, promotion, and fulfilment of the four core rights and principles of the CRC and the right to education. The meticulous examination process resulted in valuable observations regarding possible deficiencies in the NSNP that necessitate modification to guarantee the complete fulfilment of learners’ rights in accordance with the standards set in the CRC.

Although primary data was unavailable, the research was conducted according to ethical principles. All documents were utilised in a manner that adhered to scholarly conventions, with meticulous attention paid to citation and attribution. The authors took great care to ensure that there is no plagiarism in the work and that all sources were accurately cited in accordance with the guidelines of the APA referencing style. The secondary methodological approach employed in this paper played a crucial role in attaining the research objective, as it facilitated a thorough examination of the NSNP vis-à-vis the children’s rights during school breaks and the specified provisions of the CRC.

4. Theoretical framing

The present research employs a theoretical framework that is firmly grounded in the four core principles of the CRC as well as the right to education (Assembly, 1989; UNICEF, 2019). The CRC has four essential principles that guide the application, implementation, and interpretation of the Convention and are embedded in every right and article of the Assembly (1989). In practice, these four principles are interrelated, cannot be applied without considering the others, and must be understood as normative and instrumental (Humanium, nd.).

Articles 2, 3, 6, and 12 of the CRC are recognised as the four general principles underlying the Convention’s application Assembly (1989). These four core principles form a comprehensive and integrated framework for understanding and advancing children’s rights. They guide governments, organisations, and individuals in ensuring that children’s rights are respected, protected, and fulfilled (Assembly, 1989). Considering the focus and context of school nutrition programmes the right to education and the aims of education are therefore added to the theoretical framework of this contribution.

Article 2 of the CRC encapsulates the fundamental principle of non-discrimination. It underlines that each child has intrinsic rights and should not face discrimination based on race, colour, gender, language, religion, or social origin. The principle emphasises the universality of children’s rights and the importance of ensuring equal treatment for all (Assembly, 1989).

The second driving concept is the child’s best interests, as defined in article 3 of the CRC. This principle states that children’s best interests should be prioritised in all activities and choices affecting them. Decision-makers are encouraged to prioritise aspects promoting a child’s well-being and holistic development (Assembly, 1989). Upholding the child’s best interests involves considering each child’s specific needs and circumstances and in particular their needs during school breaks.

The third premise is emphasised in article 6 of the CRC: the right to life, survival, and development. This principle includes a child’s right to survival and good health and chances for optimal growth. It prioritises access to proper nourishment, healthcare, education, and growth possibilities (Assembly, 1989).

Article 12 of the CRC articulates the fourth value, respect for the child’s opinions. This idea emphasises that children have the right to express themselves and that their opinions should be given due weight in light of their age and maturity. It acknowledges children’s growing capacities and encourages their participation in decisions that affect them (Assembly, 1989).

Finally, article 28 of the CRC provides that primary education should be “compulsory and free to all” and that secondary education should be made available and accessible to every child. Appropriate measures should be introduced to make secondary education more accessible and available such as introducing free secondary education. Of particular importance is the responsibilities of States parties to “[t]ake measures to encourage regular attendance at school and the reduction of drop-out rates.” Article 29 of the CRC deals with the aims of education which can be summarised as ensuring the holistic development of the child and to ensure that all children reach their full potential. Furthermore, education must focus on educating children on the importance of human rights and subsequently become a responsible adult that has respect for the human rights of others. The right to dignity is also linked to the aims of education in General Comment 1 on the right to education of the Committee on the Rights of the Child.¹ According to this General Comment, the aims of education are to promote, support and protect the dignity and equal, inalienable rights of children. The five aims of education stipulated in article 29(1) of the CRC are directly linked to the realisation of the human dignity and other rights of the child.²

The paper employs the four core principles of the Assembly (1989) as well as the right to education as a benchmark to scrutinise the extent to which the NSNP conform to learners’ human rights during school breaks. This approach offers a valuable theoretical framework for examining the extent to which the NSNP conforms to the abovementioned rights. Furthermore, it provides a structured approach for assessing and proposing modifications to the existing NSNP, guaranteeing their adherence to the principles of respecting, protecting, promoting, and fulfilling the rights of learners consistently.

5. Literature review

In many countries, the feeding schemes at schools strives to provide school-going children with a daily, nutritious meal to aid their learning process (Banda, 2021; Zenebe et al., 2018). This review focuses on the obligations of the NSNP to respect, protect, promote, and fulfil the core principles of the CRC as well as the rights to education during school breaks. In what follows these rights and their application to the NSNP will be discussed.

6. The right to life, survival and development

Article 6 of the CRC emphasises the child’s right to life, survival and development. This is echoed in the South African Constitution that also provides in section 11 that: “Everyone has the right to life.” In this regard the Constitutional Court held in S v Makwanyane and Another 1995 (3) SA 391 (CC) that: “The right to life and dignity are the most important of all human rights, and the source of all other personal rights.” It continues to state that “the value of human life is inestimable.” The court highlights that the state has a responsibility to uphold this right and must take the lead in this regard. The court also highlights that the right to life refers to a quality of life and held:

But the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to live a as a human being, to be part of the broader community, to share in the experience of humanity. This concept of human life is at the centre of our constitutional values. The Constitution seeks to establish a society where the individual value of each member of the community is recognised and treasured. The right to life is central to such a society.

It is evident from this judgment that the right to life has a quality-of-life dimension. There are scholars that argue that the quality dimension of the right to life, survival and development is an overambitious and arguably idealistic proposition (Guariguata & Jeyaseelan, 2019). Scholars like Banda (2021) and UNESCO (2020) have posited that the emphasis on quality, whilst admirable, places unreasonable expectations on societal institutions as they grapple with providing for the basic right to life itself.

Despite these realities it is commonly accepted that the absence of proper nourishment results in detrimental health and development outcomes (UNCRC, 1989: art. 32). According to Pullar et al. (2018), hunger is a major cause of death in poor developing countries. People in poor countries lack access to nutritious food and healthcare due to poverty. As a result, children from low-income households suffer, and their right to life, survival and development is violated (Guariguata & Jeyaseelan, 2019). The World Health Organization (2021) agrees that undernutrition impacts children’s growth and development and their quality of life. As a result, the fatalities violate a person’s right to life, survival, and development (Guariguata & Jeyaseelan, 2019). However, the impact of malnutrition on health is not uniformly experienced, and studies by Clark et al. (2020) highlight significant disparities based on geographic, economic, and racial factors. This demonstrates a lack of a nuanced understanding, rendering the analysis somewhat reductionist.

Despite the abovementioned opinions of scholars that the right to life, survival and development can place States Parties under different levels of pressure to comply with it, it is evident from international instruments that States parties cannot shy away from respecting, protecting, promoting and fulfilling this fundamental right. General Comment 7 of the Committee on the Rights of the Child provides that the right to life, survival and development is intimately related to the realisation of numerous other rights which will ensure the holistic realisation of article 6. These rights include the right to “health, adequate nutrition, social security, an adequate standard of living, a healthy and safe environment, education and play (art 24, 27, 28 and 31) as well as through respect for the responsibilities of parents and the provision of assistance and quality services.”

With reference to the judgement of the African Commission on Human and Peoples’ rights in the case of SERAC & CESR v Nigeria the African Commission’s Resolution on the right to food and nutrition unequivocally states that the “right to food is inherent in the right to life, the right to health and the right to economic, social and cultural development under the African Charter.”

Likewise, the Gauteng High court held in the Children’s (2020) that: “ … hunger is not a problem, hunger is an obscenity” stressing the importance of avoiding children being exposed to hunger, and thus the infringement of their right to life. This case dealt specifically with children’s right to basic nutrition due to the suspension of the NSNP during the closure of school during the Covid pandemic. It is thus evident that the NSNP plays an important role in realising the expectations set by this important human right and in assisting parents in providing adequately for their children. In Government of the Republic of South Africa and Others v Grootboom and Others (2000) (Grootboom) the court emphasised that parents are primarily responsible to provide for the needs of their children, but that the State has a responsibility to step in to assist parents who are unable to provide adequately for their children, considering wat is reasonable and the availability of resources.

However, despite the important role of the NSNP in the realisation of this right, there seems to be a vast chasm between the theoretical interpretation of this right and its practical implementation in real-world contexts (Devereux et al., 2018). The crediting of the NSNP as a significant entity in ensuring survival by delivering nutritious meals to learners is an argument fraught with oversimplification (Mindzaeva et al. (2019). While the programme indisputably alleviates hunger, its effect on long-term survival, given the endemic socio-economic challenges that South Africa faces, is significantly less certain (Wang & Fawzi, 2020). Furthermore, the effectiveness of the NSNP is marred by corruption, mismanagement, and inefficiencies (Devereux et al., 2018), thereby questioning its purported vital role.

Additionally, the challenges such as improper implementation, failure to establish food gardens, late deliveries, poor quality of food, and poor quantities remain unattended for long periods affecting the realisation of the right to basic nutrition and food (Mawela & Van den Berg, 2020). Hence, challenges, such as the problem of implementation, food quality and quantity and delays in delivery should be properly addressed in the guidelines, to ensure the improvement of children’s nutrition through the NSNP. Also, even though there are challenges—children still benefit from the NSNP, and the benefit outweigh the challenges. The challenges can be addressed for the current position and for the issue of school breaks.

These regrettable realities are part of the evaluation of the NSNP’s alignment with the provisions of the CRC. Since the NSNP is operational in schools it is important to investigate the link between the NSNP and the right to education.

7. The right to education

Some scholars compelling argue that the suspension of the NSNP during school holidays compromises the right to life, survival and development (Matidza et al., n.d.). However, there are also scholars that argue that it is crucial to remember that schools’ primarily function is as educational institutions and schools should not be responsible for providing for learners’ nutritional needs year-round and that there are other societal and governmental structures that are responsible for the realisation of the right to food and basic nutrition (Darling-Hammond et al., 2020). This argument does not really hold much water since section 7(2) of the Constitution provides that the: “State must respect, protect, promote and fulfil the rights in the Bill of Rights.” Although specific departments have core functions a department cannot claim that it is not responsible for the realisation of certain rights in the Bill of Rights. For instance, the Department of Social Development is primarily concerned with the care and protection of children, but the Children’s Act explicitly state that existing structures, such as schools, should be strengthened to provide care and protection to children. (RSA, 2005: s.1(2b(iii) &; (e))).

In the Children’s (2020) the Department of Education also proffered the argument that providing nutrition to children is not included in the right to education and it is therefore not their responsibility to provide nutrition to learners while the schools are closed due to Covid. They argued that it is the responsibility of the Department of Social Development. However, the court found that the policies and practices of the Department of Education indicates that the right to nutrition is included in the right to education in South Africa and therefore part of the responsibilities of the Department of Education.

This is also in line with several other court cases that refined the ambit of the right to education. It is now trite law that the right to education includes among others the right of every child to have access to textbooks (Section 27 and Other v Minister of Education and Another, 2012), to proper school furniture (Madzodzo obo Parents of Learners at Mpimbo Junior Secondary School and others v Minister of Basic Education and others (2014), to transport (Tripartite Steering Committee and Another v Minister of Basic Education and others (2015), and to proper sanitation and safe infrastructure (Equal Education and another v Minister of Basic Education and others (2019). These judgements and others are all in line with the standards set in international law.

General Comment 1 of the Committee on the Rights of the Child as well as other international instruments such as the International Covenant on Social, Economic and Cultural Rights (United Nations General Assembly, 1966) and General Comment 13 of the Committee on Social, Economic and Cultural Rights provides clear guidance to States parties on the expectations for the proper realisation of the right to education. It is evident from the rich body of case law on the ambit of the right to education mentioned above that the South African courts play a significant role to ensure that education is provided in line with the provisions of the international law and ensures that education is available, accessible, acceptable and adaptable in South Africa.

For purposes of this contribution, it is imperative to pay special attention to the Children’s (2020) judgement and its significance to the realisation of the right to education. This case was launched during the Covid pandemic when all schools were closed. At the time of the institution of the litigation the schools had been closed for 12 weeks. The Department planned to reopen schools in a staggered manner with only grades 7 and 12 learners that had to return to school on the 8^th of June 2020. The idea had been to allow the other grades to start to attend school in different phases. Despite promises to reintroduce the NSNP for all learners on the 8^th of June the Department of Education failed to do that, and food had been provided only to the learners that were at school. Thus, children that had to continue their education through distance education were excluded from access to food through the NSNP. The gist of this case is an application to compel the Department of Education to resume the NSNP with immediate effect and to make the food available to all qualifying learners, whether they had been physically attending school or not.

The court highlighted the following important principles in this case: Firstly, the NSNP is “literally a lifesaving programme for the poorest of the poor” children ensuring that these children receive at least one nutritious meal per day. Secondly that the pandemic denied about 9 million learners’ access to one nutritious meal a day, “leaving many, many children hungry and unfed while attempting to learn.”

Thirdly, despite all the efforts of the government to provide social assistance through social grants and distributed 788 000 food parcels during this time, this was not enough and compared poorly with the 45 million meals per week that are normally made available to children during school terms. The court held that the suspension of the NSNP had been “a colossal disaster for the distribution of food to poor children.” This highlights the fact that the necessary infrastructure, staff and systems are already in place to effectively provide food to millions of needy learners and that the NSNP is seemingly working effectively. The court highlight the fact that schools are important points of contact to provide much needed services to vulnerable learners.

To simply extend what is done during school terms to school holidays to address the nutritional needs of millions of children is thus a logical next step to realise the children’s right to nutrition during school holidays too. It is evident from what happened during Covid that the Department of Social Welfare does not have the capacity to address these children’s need for food during school holidays. This is a perfect example of giving effect to the Childrens Act’s requirement that existing structures should be strengthened in communities to realise the rights of children. Creative ways can be developed to distribute food from schools to children during holidays since the basic facilities and capacity are already in place.

Fourthly, the state must support parents who cannot provide adequacy for their children and the NSNP does exactly that for millions of children. The fact of the matter is that poor children do not only need food during school terms but also during school holidays. Their need for food does not magically disappear because the schools are closed. The need for an expansion of the NSNP to assist learners during school holidays is further highlighted by the fact that the court emphasised that 30% of the South African population experience severe levels of food insecurity which is much higher than the global average or even the average in Africa.

The effectiveness of school feeding programs like the NSNP has been questioned, with evidence suggesting mixed outcomes and variances across regions (Govender et al., 2021). A well-fed child subjected to an unsafe or poor-quality learning environment may not enjoy the full benefits of education (Mawela & Van den Berg, 2020). Hence, the emphasis on continuous access to nutrition food, to acknowledge the multi-faceted nature of educational success.

The implementation of the NSNP, particularly during school breaks, is marred by inconsistencies and disparities across regions (Department of Basic Education & Department of Performance, Monitoring and Evaluation, 2016; Mawela & Van den Berg, 2018). Additionally, regional disparities in implementation have been reported (DBE & DPME, 2016; Equal Education Case; 2020), which can be interpreted as a breach of learners’ right to education, leading to stunting of growth. Furthermore, it must be noted that development and growth is a continuous process which does not only happen during school terms but throughout the year. These inconsistencies undermine the effectiveness of the NSNP and raise questions about the integrity of the system, further questioning the authenticity of the so-called right to education.

8. The right non-discrimination

The fundamental concept of equality is frequently misinterpreted (Marshfield, 2021). Article 2 of the CRC provides States Parties have to respect and promote all the rights of all the children within their jurisdiction and should take vigorous steps to eliminate any discrimination on any of the listed grounds, which includes race, ethnic or social origin or any other status. Discrimination is not defined in the CRC, but it is evident from General Comment 5 of the Committee on the Rights of the Child that non-discrimination requires States Parties to actively identify vulnerable children or groups of vulnerable children that needs additional assistance to realise their rights. It further states that one should not equate non-discrimination with identical treatment of everyone. The Human Rights Committee’s General Comment 8 therefore states that non-discrimination imperatives allow for affirmative action to ensure equal outcomes for everyone. If the aim of the differential treatment is to ensure equal enjoyment of human rights, it should be lauded and encouraged.

It is against this background that one should understand the implementation of the NSNP which is mostly only applied in quintile one to three schools and children in quintile four and five schools are excluded from the programme. The assumption being that the parents of children in fee paying schools have adequate resources to provide the necessary nutrition for their children. This might not always be true leaving children in quintile four and five schools without access to the NSNP. However, other welfare institutions and the Department of Social Welfare will assist these children if their needs are reported to these welfare organisations. Staff in quintile four and five schools should thus be vigilant to identify learners that might need additional assistance to access services that can realise their right to basic nutrition.

Other challenges such as geographical location and lack of resources can also limit the extent to which the NSNP can uphold this right (Shanshan et al., 2018). There is a need for the NSNP to work towards eliminating these disparities, ensuring that each learner’s right to equality is respected. However, this ideal is far from the reality many South African learners experience daily. One might speculate about the potential reasons for such widespread discrepancies and whether the discrepancy is an inherent characteristic of the NSNP or a byproduct of broader societal issues. Furthermore, the idea of “equal access” as propagated by the NSNP seems flawed as it assumes that equal distribution of resources automatically leads to equality of outcomes (Shanshan et al., 2018).

Diving deeper into the challenges, the geographical location of learners is a significant barrier to the effective implementation of the NSNP (Panizzon, 2015). The assertion by Panizzon (2015) rings true, especially for learners in rural areas, where distances between schools and households to receive meals are often substantial, rendering transportation of the necessary resources a logistical nightmare. As re-iterated by City Press (2022) principals were not well informed of the learner transport policy and their roles in its implementation.

However, the NSNP seemingly fails to consider these geographical variances and their implications on its implementation. In the Constitutional Court case of Centre (2011), the court recognised that failure to consider learners’ geographical conditions violates their right to equality and basic education. Such oversights reflect the lack of thoughtfulness and sensitivity on the part of the NSNP.

Furthermore, it is essential to interrogate the resource limitations affecting the efficacy of the NSNP. While lack of resources is undoubtedly a factor limiting the NSNP’s ability to provide equal benefits to all learners (Panizzon, 2015), as some schools are affected by late-deliveries or no deliveries (Devereux et al., 2018). As such, one cannot ignore that these deficiencies are a symptom of systemic inadequacies. The inability to provide adequate resources speaks volumes about the lack of foresight, planning, and efficient management (Devereux et al., 2018; DPME, 2016). Furthermore, Devereux et al. (2018) reveals that those who are responsible for the implementation of the NSNP often mismanages the few resources it does have, with funds and foodstuffs frequently unaccounted for or lost due to corruption and poor record-keeping. Such gross mismanagement indicates a system in dire need of fundamental restructuring.

The need for the NSNP to eliminate disparities and uphold each learner’s right to equality is touted, albeit without substantive action to support this (Graham et al., 2015). Such lip service paid to the principle of equality without comprehensive strategies to address the core problems further undermines the NSNP’s credibility and effectiveness. As argued by Graham et al. (2015) and corroborated by the court ruling in Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) (2005), it is imperative for the NSNP to take proactive steps to rectify these issues, rather than offering mere tokenistic reassurances of change.

As such, while the NSNP proclaims its commitment to the constitutional right of equality, a critical analysis of its implementation reveals numerous shortcomings, including flawed assumptions, geographic ignorance, resource mismanagement, and hollow assurances. Therefore, a comprehensive re-evaluation of the NSNP’s approach to achieving equality is necessary and critical for its success. Still, it fails to consider the quality, consistency, and cultural appropriateness of the meals served, issues that can inadvertently undermine dignity and equality (Shanshan et al., 2018). This blatant oversight in the NSNP’s operation is indeed disconcerting, thus necessitating further examination. The intermittent distribution of meals undermines the program’s reliability and further marginalises the vulnerable populations it seeks to assist.

9. The right to basic nutrition and health

The right to basic nutrition and health emphasises the NSNP’s role in ensuring healthy development for learners. The NSNP, a central player in providing the basic rights of health and nutrition to learners, reveals a certain level of inconsistency and perhaps even disregard for the continuity of these rights in its operational framework. Critics argue that the programme, while impactful during school terms, does not maintain its service provision during school holidays (Alderman & Bundy, 2012). This is a noteworthy departure from the pledge to consistently uphold the right to basic nutrition and health, opening the NSNP to critique.

As seen in the Equal Education case (2020), it was conclusively indicated that the NSNP had significantly contributed to improving the health and nutrition status of learners. Nevertheless, the research falls short of addressing the suspended operations during school breaks, inadvertently leaving children vulnerable (Equal Education case (2020); Reyneke (2020). It is evident that the NSNP’s operational framework seemingly provides a safety net only when schools are in session, creating a glaring gap when schools close. For a nation that constitutionally guarantees the rights to health and nutrition for children (The Constitution of South Africa, RSA (Republic of South Africa), 1996), the cyclical discontinuity brings into question the commitment of the NSNP to these rights.

In stark contrast to the perception that the NSNP consistently meets the health and nutrition needs of learners, a deeper analysis of its operational pattern reveals a potential undermining of the learners’ constitutionally guaranteed rights during school breaks Equal Education case (2020). In other words, discontinuing the NSNP services during school holidays deprives learners of their right to basic nutrition and health. This breach requires critically examining the NSNP’s operations vis-à-vis its commitment to these rights.

It is glaring that the NSNP, as it currently stands, is designed to function within the confines of the school calendar, ignoring the needs of the learners during holidays (Equal Education case (2020). This disjointed operational framework invariably calls into question the NSNP’s commitment to continually fulfil these rights, even when schools are closed. The NSNP is not just a feeding program but a key factor in learners’ health, nutrition, and overall well-being, and as such, its operation should not be limited to the school calendar (Alderman & Bundy, 2012).

10. The right to be heard

Article 12 of the CRC provides that States parties must ensure that children who are able to form their own opinions are granted the opportunity to express it and the State must give due weight to the opinions of the children. A similar provision is included in the Children’s Act in section 10. In terms of section 8 of this Act this is one of the rights that supplements the rights of children in the Bill of Rights in section 28.

It is evident from General Comment 12 of the Committee on the Rights of the Child that schools should create safe spaces where children can voice their opinions on the NSNP. Schools should take special care and put measures in place to elicit the views of the children and give due weight to the opinions of children. Thus, children’s opinions should be taken seriously enough that they can convince the adults, where appropriate to implement the NSNP differently. However, the guidelines do not make provision for children’s voices to be heard.

11. The best interests of the child

Article 3 of the CRC provides that the best interests of the child “shall be a primary consideration” in all action pertaining to children. The South African Constitution (1996) sets the bar a bit higher and determines in section 28(2) that the best interest of the child is of paramount importance in all matters that affects the child.

The Committee on the Rights of the Child drafted General Comment 14 on the right of the child to have his or her best interests taken as a primary consideration to guide States Parties on the implementation of this right. It is evident from this General Comment that children have the right to have their best interests assessed and taken into consideration as a primary consideration in all actions and decisions that concerns children. Thus, all legislative and administrative decisions pertaining to the NSNP must comply with the best interests of the child standard. This General Comment reminds States Parties that the best interest of the child is a dynamic concept that must be applied within a specific context and that the main aim of this concept is to ensure that children are in a position to enjoy the realisation of all their human rights to the fullest extent possible and to ensure the holistic development of the child. The NSNP will thus only meet the best interests of the child standard if it effectively contributes towards the enjoyment of all the other rights of children such as their right to education, health, water, basic nutrition and equality to mention but a few related rights of the child. A proper rights-based approach is thus required to ensure compliance with the best interests of the child standard.

To implement the best interests of the child concept appropriately one must keep in mind that it is a multifaceted concept which include three dimensions. Firstly, it is a substantive right, which guarantees children that their best interest will be assessed and taken into consideration in all decisions that affect them. Thus, children have a right to insist on an evaluation of the NSNP and whether it is indeed serves their best interest. In this regard issues such as the quality of the food that is served comes to mind. It is evident from several studies that children do not really receive a balanced meal at school and that the meals consists mainly of starch (El Ghoch & Valerio, 2020). On average the government spend R3.27 per child per day. The question being whether it is a realistic amount of money and whether it is indeed possible to provide a nutritional meal with that amount of money. Serious questions should therefore be asked regarding the allocation of national resources, whether the allocation for the NSNP is in the best interests of the children and whether the allocation can be justified when different competing interests are considered.

Secondly, the best interests of the child serves as a fundamental, interpretative legal principle. Therefore, if any of the provisions of the NSNP guidelines or requirements of the Constitution are open to more than one interpretation the interpretation that serves the best interests of the child best, must be chosen. It is evident that the NSNP’s operational framework seemingly provides a safety net only when schools are in session, creating a glaring gap when schools close. For a nation that constitutionally guarantees the rights to health and nutrition for children (The Constitution of South Africa, Republic, 1996), the cyclical discontinuity brings into question the commitment of the NSNP to these rights and the best interests of the child (Reyneke, 2020). This is a noteworthy departure from the pledge to consistently uphold the right to basic nutrition and health, opening the NSNP to critique and failing to meet the best interests of the child standard.

Thirdly the best interests of the child serves as a rule of interpretation. This requires the State to evaluate the current position of only providing food to children during school terms and not during school breaks. The State will have to proof that when they took the decision to only provide food during school terms, they explicitly considered the best interests of the child. Therefore, the State is required to indicate what has been considered to be in the child’s best interests when they made the decision that the NSNP will only serve the nutritional needs of children during school terms. The State must be able to indicate the criteria it employed to come to the decision not to provide food during school holidays and how the child’s interests have been weighed against other consideration. The State will therefore have to indicate for instance that it is logistically impossible or too onerous to provide children with food during school breaks.

That will probably be a very difficult standard to meet since many children live close enough to their schools to actually go to the school to eat there once a day. Furthermore, as argued by Banda (2021), strategies such as bridging food banks or community partnerships could be considered to ensure the continuity of service provision during school holidays. These potential modifications to the operational framework of the NSNP may better align it with the constitutional rights of learners and its mandate of ensuring healthy development and the best interests of the child. It should be kept in mind that the NSNP is not just a feeding program but a key factor in learners’ health, nutrition, and overall well-being, and as such, its operation should not be limited to the school calendar (Alderman & Bundy, 2012). The school breaks, which would normally serve as a respite for learners, ironically become a period of heightened concern for their food security. The NSNP’s discontinuity during these periods goes beyond the physical lack of food (Reyneke, 2020). It becomes a symbolic gesture, signifying the State’s lackadaisical attitude towards maintaining the dignity and best interests of its learners (Nkosi, 2020). It becomes even more disconcerting when you consider the reality that the one meal children receive at school is for many children the only meal they have for a day (Equal Education case, 2020).

General comment 14 urges States Parties to keep the inter alia the following in mind when it gives effect to the best interests of the child namely the “universal, indivisible, interdependent and interrelated nature of children’s right. Thus, the NSNP not only impacts the four core principles of the CRC but numerous other rights. For instance, if the NSNP fails to consider the quality, consistency, and cultural appropriateness of the meals served it infringes on several rights of children such as dignity and to practice your culture (Shanshan et al., 2018). Furthermore, the government should be weary of the short-, medium- and long terms effects of the NSNP and its impact on the holistic development of the child and the impact of malnutrition on the development of non-communicable diseases later on in the lives of the children (Newman, 2020).

12. Results

The findings obtained from the desktop research revealed numerous insights concerning the human rights in relation to the NSNP during school breaks.

The findings indicate that the NSNP play a crucial role in upholding the fundamental rights of learners to receive adequate nutrition and education throughout the academic year, as per the Department of Basic Education’s (DBE) report in 2021. Nonetheless, the explicitness of the respect for these rights seemed to diminish during periods of break in educational institutions. The NSNP is crucial in providing daily sustenance for numerous learners, particularly those from low-income households (Boatemma et al., 2018). Consequently, school holidays may inadvertently impede their ability to obtain sufficient nourishment.

Nevertheless, the data divulged the absence of measures during intermissions in the academic calendar. The possibility of this situation may lead to vulnerability among learners, particularly those who rely on the NSNP for their daily meals, in terms of malnutrition and food insecurity, as seen in the Equal Education case (2020; Guariguata & Jeyaseelan, 2019).

The NSNP exhibited a degree of ambiguity in relation to the advocacy of learners’ rights to education. The aim of education is for learners to become a responsible adult that can take care of themselves. However, the findings reveal challenges such as lack of food gardens and training. Furthermore, the NSNP do not expressly specify the means by which learners are heard in decision-making procedures pertaining to their nutritional welfare, particularly during periods of school breaks. The aforementioned observation violates article 12 of the Assembly (1989), which upholds the child’s rights to articulate their opinions on any issue that impacts them (Assembly, 1989: art.12).

The paper revealed a deficiency in meeting the learners’ rights stipulated in the CRC, particularly ensuring consistent nutritional assistance throughout school breaks. The NSNP (DBE, 2009) did not provide explicit provisions for uninterrupted nutritional support during school breaks. The absence of provisions for basic nutrition during school holidays has the potential to compromise the realisation of the right to adequate nourishment for numerous learners. Thus, compromising their health, development, quality of life and survival (Assembly, 1989: art.6; RSA, 1996).

The paper’s findings indicate that the NSNP demonstrate significant endeavours to uphold learners’ constitutional rights during school periods. Still, they do not adequately address these aspects during school breaks. The results underscore the need for an improved rights-oriented methodology in the NSNP to guarantee the ongoing respect, protection, fulfilment and realisation of learners’ rights throughout intermissions in their academic pursuits.

13. Recommendations

This section provides the recommendations of the paper. The recommendations are made in line with the four core principles of the UNCRC (1989) in the context of the National School Nutrition Program (NSNP) in South Africa, even when schools are closed for holidays.

13.1. Non-discrimination

During school holidays, it’s crucial to maintain the principle of non-discrimination by ensuring that the NSNP continues to provide support to vulnerable children. This could involve collaborating with local community centres or NGOs to offer nutritious meals to children in need, regardless of their background. Special attention should be given to reaching children who might face increased challenges when schools are closed. Furthermore, deserving learners in upper quartiles (Quartile four and five schools considered well-resourced and advantaged by the DBE) should also be considered and not be left out.

13.2. Best interests of the child

Even when schools are closed, the NSNP can uphold the child’s best interests by adjusting its approach. This could involve providing families with take-home meal packages or vouchers, considering the children’s nutritional needs and preferences. The meals provided should be nutritious, culturally appropriate, and appealing to ensure children’s overall well-being.

13.3. Right to life, survival, and development

The NSNP’s commitment to children’s right to life, survival, and development remains relevant during school holidays. Strategies could include distributing extra food parcels before holidays to ensure children have adequate nutrition during the break. This proactive approach helps prevent hunger and malnutrition, contributing to their growth and development.

13.4. Respect for the views of the child

Even during holidays, involving children’s perspectives can be integrated into the NSNP. Feedback mechanisms could be established to gather insights from children and their families about their preferences for take-home meals. This practice maintains a sense of participation and empowerment, acknowledging their voices in decisions that affect them.

In summary, aligning the NSNP with the CRC principles during school holidays involves adapting strategies to ensure non-discrimination, uphold the child’s best interests, support their survival and development, and maintain respect for their views. By extending the program’s reach beyond school days, the government demonstrates its commitment to safeguarding children’s rights and well-being throughout the year.

14. Conclusion

In conclusion, the paper emphasises the necessity for the NSNP to be underpinned by constitutional rights and international legal frameworks specifically related to children’s rights. This stance underlines the importance of framing the operational guidelines of the NSNP within the context of the Convention on the Rights of Children (CRC) (Assembly, 1989 and the four core principles of the Assembly (1989) remind all stakeholders that children are not merely passive recipients of care but are entitled to certain inalienable rights. Thus, anchoring the NSNP’s policy development and implementation strategies within this understanding is an indispensable requirement.

Indeed, the NSNP has achieved significant progress in its mission to nourish the country’s learners. Its initiatives have substantially contributed to enhancing learners’ health and well-being. However, this is not to say that the program is without its shortcomings (DBE & DPME, 2016). The issue lies predominantly in what appears to be potential lapses in ensuring learners’ nutritional rights during school breaks. This is a complex matter, as break periods are integral to the school year, yet it is during these times that the most human rights of learners may be compromised. Hence, a critical review of current practices is warranted to ensure that the NSNP’s operations consistently respect, protect, and fulfil the learners’ rights, even during school breaks.

Therefore, it is vital to conduct a thorough evaluation and overhaul of the existing guidelines to integrate a rights-based perspective more effectively. This perspective emphasises the recognition of learners as rights-holders whose rights must be consistently upheld, safeguarded, advanced, and satisfied. Adopting such a viewpoint necessitates a substantial transformation in how the NSNP operates, moving from a service delivery model to one emphasising children’s rights. The revised guidelines should focus on the physical nourishment of learners and their broader educational and developmental needs. This evaluation and revision process is not merely a bureaucratic exercise but rather an opportunity to ensure that the NSNP consistently serves the best interests of the learners it is designed to support.

In conclusion, the four core principles of the Assembly (1989) as a theoretical framework ensures that the learners’ rights remain the focal point of the NSNP. This focus will guide the development of policies and practices designed to benefit learners nutritionally and educationally, thereby significantly contributing to the development of healthier and more empowered future generations. Furthermore, the paper recommends conducting additional research with stakeholders such as children, parents, teachers, and local communities to gain their perspectives on the NSNP’s strengths, challenges, and potential improvements. This participative approach can potentially improve the paper’s findings and suggestions.

Acknowledgments

Each author has reviewed and approved the final version of this manuscript, and we all consent to its submission to Cogent Social Sciences. All authors have been acknowledged properly as included in the title page. We affirm that this manuscript has not been previously published and is not currently under consideration for publication in any other journal. If accepted for publication, all authors agree to respond to any requests for additional information or revisions promptly.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Supplementary material

Supplemental data for this article can be accessed online at https://doi.org/10.1080/23311886.2023.2290692

Additional information

Funding

This work was not supported by any funding.

Notes on contributors

Lebohang Mulaudzi

The authors of this paper bring a diverse set of expertise to their research. Mulaudzi Lebohang, the first author, is a Ph.D. candidate, displaying a keen interest in education law and policies. Professor Reyneke is a distinguished professor at the Faculty of Law and serves as the first author's supervisor. Dr. Gcelu, is a senior lecturer at the Faculty of Education, contributing a valuable perspective on education issues. The research in this paper originates from Mulaudzi Lebohang's Master's dissertation in Education Law. This study aligns with wider projects and concerns surrounding child rights, education, and nutritional welfare in South Africa, reflecting the authors' dedication to advancing the rights and well-being of learners, especially during non-academic intervals. Their work sheds light on the importance of a child rights-based approach within the National School Nutrition Programme and how it can have broader implications for education and child welfare policies in the country.

Notes

1. CRCGC 1 2001:par 1.

2. CRCGC 8 2006:par 26. Assembly (1989):a 28(2), 39; ACRWC (1990):a 11(5).