Minister of Social Development v SA Childcare (Pty) Ltd & Others; MEC, Social Development, Eastern Cape & Others v SA Childcare (Pty) Ltd & Others

During the COVID-19 national lockdown following the declaration of a state of disaster on 15 March 2020, all Early Childhood Development and Partial Care facilities (ECDs) were required to close. SA Childcare (Pty) Ltd and seven other organisations/individuals in the ECD sector brought an urgent application alleging that the Minister of Social Development and eight provincial MECs for Social Development had unlawfully withheld subsidies to ECDs during the lockdown, violating constitutional obligations regarding social assistance (s 27(1)(c)), children's rights to basic nutrition (s 28(1)(c)), and the paramountcy of children's best interests (s 28(2)). The respondents sought declaratory orders and a structural interdict compelling payment of full subsidies (including nutrition, stimulation and administrative components) to all ECDs that had received funding before 31 March 2020, regardless of whether they had resumed services. The High Court granted the relief sought, finding that the Minister and MECs had violated the Constitution and ordering them to pay costs on an attorney and client scale.

• Whether the Minister and MECs unlawfully withheld subsidies to ECDs during the COVID-19 lockdown
• Whether the constitutional rights to social assistance, children's nutrition and children's best interests were violated
• Whether a structural interdict was warranted to compel payment of subsidies
• Whether the proper principles for determining disputes of fact in application proceedings were applied
• Whether the factual version of the Minister and MECs should have been accepted or rejected on the papers

The appeal was upheld. The order of the High Court was set aside and replaced with an order dismissing the application. No costs order was made.

In application proceedings where disputes of fact arise, a court deciding whether to grant final relief must accept the respondent's version of disputed facts unless: (1) the respondent's denials do not raise a real, genuine or bona fide dispute of fact; (2) the respondent has not seriously and unambiguously addressed the disputed facts in the answering affidavit; or (3) the respondent's allegations or denials are so far-fetched or clearly untenable that the court is justified in rejecting them on the papers. Where a respondent engages seriously and unambiguously with factual allegations and provides a credible version, that version must be accepted in determining whether relief should be granted. Administrative decisions, even if arguably unlawful, have practical effect until successfully challenged and set aside by a court through review proceedings. Allegations of constitutional violations must be based on solid factual foundations; emotive language, vague allegations and inadmissible hearsay evidence do not establish systemic breaches of constitutional obligations.

The SCA made observations that the punitive costs orders made by the High Court (attorney and client costs) were unwarranted. Plasket JA also noted the 'patently unreasonable attitude' adopted by the respondents in the appeal (insisting the matter be argued on merits even when the appellants initially conceded mootness and sought only to address costs), though the Minister and MECs did not seek costs against them. The Court acknowledged that 'a great deal of suffering occurred during the lockdown' but noted this did not establish that the Minister and MECs had breached their constitutional obligations. The SCA observed that even if the nutrition component had been paid to ECDs during lockdown, they could not lawfully have used it for its intended purpose, and the funds would have had to remain unspent or be returned. The judgment also noted that the respondents' papers consisted 'in large measure, of vague factual allegations...of emotive and vague statements masquerading as facts; of inadmissible hearsay evidence; and of unfortunate, ill-conceived and unsubstantiated allegations of bad faith'.

This case is significant for restating and applying the established principles for determining disputes of fact in application proceedings, particularly in the constitutional law context. It emphasizes that courts must not simply prefer an applicant's version when facts are properly disputed by a respondent, and that respondents' versions must be accepted unless they fail to raise genuine disputes or are far-fetched or untenable. The case demonstrates the importance of proper factual engagement in affidavits and the duty of legal advisors to ensure disputes are fully and accurately reflected. It also illustrates the courts' approach to allegations of constitutional violations arising from government conduct during the COVID-19 state of disaster, requiring solid factual foundations rather than emotive or vague allegations. The judgment shows that administrative decisions taken during emergencies must be challenged through proper review proceedings if they are to be set aside, and that their practical effect continues until successfully challenged. It reinforces that structural interdicts and declarations of systemic constitutional violations require proof of systemic failures, not isolated administrative difficulties.