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

The respondents, comprising organisations and individuals in the Early Childhood Development (ECD) sector, brought an urgent application in the Gauteng Local Division challenging the conduct of the Minister of Social Development and eight provincial MECs during the COVID-19 lockdown. They alleged that the appellants unlawfully and unconstitutionally withheld ECD subsidies allocated under the Division of Revenue Act for the 2020/2021 financial year, thereby violating children’s socio-economic rights under sections 27 and 28 of the Constitution. Although ECD facilities were closed during lockdown, the Minister had issued directions indicating that subsidies would continue. Provincial departments, however, exercised discretion and generally paid only 60% of subsidies, excluding the nutrition component, on the basis that children were not attending ECDs. The High Court found that the Minister and MECs had breached their constitutional obligations and granted declaratory relief, coupled with a punitive costs order. The Minister and MECs appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the High Court was set aside and replaced with an order dismissing the application.

The case is significant for reaffirming the strict application of the Plascon-Evans rule in constitutional and public interest litigation brought by way of application proceedings. It underscores that allegations of systemic constitutional breaches must be supported by clear, admissible evidence. The judgment also clarifies the scope of executive and administrative discretion in the allocation and payment of social development subsidies during emergencies such as the COVID-19 pandemic.