IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case No: 22588/2020 Inthe matter between: Equal Education First Applicant School Governing Body of Vhulaudzi Secondary Schoo! ‘Second Applicant ‘School Governing Body of Mashao High School Third Applicant and Minister of Basic Education First Respondent MEC of Education, Eastern Cape Second Respondent MEC of Education, Free State Third Respondent MEC of Education, Gauteng Fourth Respondent MEC of Education, KwaZulu-Natal Fifth Respondent MEC of Education, Limpopo Sixth Respondent MEC of Education, Mpumalanga Seventh Respondent MEC of Education, Northern Cape Eighth Respondent MEC of Education, North West Ninth Respondent MEC of Education, Western Cape Tenth Respondent FILING NOTICE 4. Date on the roll: Not available 2, Document filed: Affidavit for First Respondent 3. Filed by: Office of State Attomey: Pretoria2 se oy ‘Signed and dated at Pretoria this, day of. 2020. Office of State Attorney: Pretoria Ground Floor, SALU Building No 316 Thabo Sehume Street PRETORIA Tel: 012 309 1629/1523 Fax: 086 4673 908 E-mall: Prkhosa@justice.gov.za To: ‘Tho Registrar of the High Court Gauteng Division PRETORIA ‘And to: —_Attomeys for Applicants Sectlon 27 First Fidor, South Point Corner 87 De Korte Street Braamfontein JOHANNESBURG Tel: 011 356 4100 E-mail: stevenson@section 27.0rg.za (CXBataPrtydokumantiKenetusionlerg\Equel Evasion v Bane Gducaton A131 Jtjowpda 18 THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case No: 22588/2020 In the matter between; Equal Education First Applicant ‘School Governing Body of Vhulaudzi Secondary Schoo! ‘Second Applicant School Governing Body of Mashao High School ‘Third Applicant and Minister of Basic Education First Respondent MEC of Education, Eastem Cape Second Respondent MEG of Education, Free State Third Respondent MEC of Education, Gauteng Fourth Respondent MEC of Education, KwaZul Fifth Respondent MEC of Education, Linipopo Sixth Respondent MEC of Education, Mpumalanga WEG of Education, Northern Cape Eighth MEC of Education, North West Ninth Respondent MEC of Education, Western Gape ‘Tenth Respondent AFFIDAVIT 1, the undersigned ANGELINA MATSIE MOTSHEKGA do hereby declare under cath as follows: 1. lam a major female and a Cabinet Minister in the National Executive, appointed as the Minister of Basic. Education and rasponsible for the Department of Basic Education (‘the Department’), with the address of my office and that of the Departrient situated at No 222 Struben Street, Pretoria. whe kJ+ ‘The contents of this affidavit fall within my personal knowledge, unless the context indicates otherwise, and are to the best of my belief and knowledge beth ‘true and correct. ‘The purpose of this affidavit is to comply with the order of the Honourable Court made on 17 July 2020 in paragraph 103.9 of the Judgment delivered on the same date, namely, within 10 days to file under oath, and provide to the Applicants, a plan and programme which Iwill implement withaut delay so as to ensure that the MECs carry out without delay their duties as referred to In the other orders mada by the Honourable Court, and which address the following matters: 3.4 what steps Ihave taken to ensure that the MECs continue to provide food to all qualifying leamers during the State of Disaster without delay, 3.2 what further steps I will take In this regard; and 3.3 when I will take each such step. With reference to paragraph 3.1 above, I report as follaws: 41 T have taken the step to have the policy pertaining to the Conditional Grant (by means whereof the National School Nutrition Programme Is funded) reviewed go as to amend the conditions and requirements wl ff+ thereof to the cufrent situation under the Covid-19 Pandemic. 4.1.1 This was done to ensure that provision of meals to learners that are not in school, is included in the NSNP policy mandate, 4.1.2 The Department, in consultation with the National Treasury, reviewed the NSNP Conditional Grant Framework in June 2020. 41.3 The Framework now indicates that if schools are olosed due to a declared State of Disaster, funds from the Grant that would have been spent on praviding meals in schools may Instead be used to provide meals to learners in far-flung areas through alternative means at a minimum of R170 nutritious food items per leamer por ‘month. 41a In this regard I refer to the Honourable Court to annexure ‘A’ hereto, which will inform the 2020 Division of Revenue Amendment Bill, My Department has already put in: place @ process for the review of a Business Plan to ensure that indicative budgets are allocated for the provisions of meals to alt learners in line with the Court Order. 4.2.1 In terms of the section 10.1 (a)(li)(2a) of the Division of Revenue wh Ar+ Bill, the Transferring Officer of a Schedule & or 6 allocation must cottify to the National Treasury that any Business Plans required interms of the framework of a Schedule 5 allocation, regarding the use of the allocation by a Province, have been approved before the start of a financial year. 4.2.2. These Provincial Business Plans have already been approved but did not take into account the Implications of the Covid-19 pandemic, 4.2.3. The purpose of the ptocess of review ia to allow for the utilisation of the savings, generated in April and May 2020 4.24 The reviewed business plans will be finalised by 20 August 2020. 4.2.5. Inthis regard | must also report that the business planning process to date has determined that there are possibilities of budget Inadequacy on the provision of food parcels during the latter months of the year (November and December 2020). This Is due to the fact that the average NSNP meal cost per month Is R863 per month, creating a shortfall of more than R100 when compared to the unit cost for a monthly food parcel offered by the Department ‘of Social Development. {tis anticipated that with further cloeure of schools a announced by the President, Mr C Ramaphosa on why:te 23 July 2020, there will be an increase in the number of learners that will need food parcels. 43 Since the closure of schools in March 2020, the Department initiated a continuous consultation with all Provincial Managers/Coordinators towards adjusting school feeding plans In line with the revised school calendar. The Department held the following meetings with provinces to discuss the mandate: 4.3.1 08 June 2020: A virtual Inter-provincial meeting was held where NSNP Provincial Managers discussed the amended Conditional Grant Framework, feeding of leamers: as they retumed to schools, provision of feeding through altemative means such as food parcels costed at a minimum of R170 pet learner per month, as well as review of approved business plans. 43.2 14 June 2020: A meeting hosted by the Director-General was held to discuss plans to extend the feeding to all leamers, including those who are at home. In this regard | refer to annexure ‘B *, whyThe Director-General also sent a formal communication to Provinces to provide -a plan to feed all leamers, including those not attending classes. In this regard | refer to annexure °C *, 4A My Department has also, in view of the recent surge In COVID-19 infections. and uncertainties ahead, identified potential risks with measures towards mitigation as follows: 4.5 The results of the steps taken by the Department and myself are as follows: 4.5.1. Provinces submitted initial plans on feeding leamers'as they are. wht* phased-in as well as those that are at home. The provincial ‘submissions were submitted to the Legal Services of the Department on 21 June 2020. 4.5.2 Provinces are in the process of submitting draft business plans that include feeding of all learners as per Court Order, 4.5.3 The Menu Calculator was developed in conjunction with the Feed, Unlift, Educate and Love NGO, to enable food quantities flexibility when meals are prepared. This is in response to the fact that not all expected leamers have retumed to schools and that leamers: are allowed to receive meals from any closest school, The menu caloulator has been provided to Provinoss via a letter from the Director-General. DG letter. In this regard | refer to annexure ‘D', 5. With reference to paragraph 3.2 and 3.3 above, | report that further steps that will be taken by the Department and mysetf, including the target date for such a steps and the identification of the Organ of State responsible for the implementation thereof, were planned as follows: Table 2 ‘Due date a) Letter to MEC’s on Court Order and ‘appeal for compliancef)__Inter-provincial meeting to be held DBE and Provinces | 27 July 6. The letter referred to in Table 2 has already been sent. In this regard | refer to ‘annexure ‘E*. The meeting referred to in Table 2 was held and in this regard | refer to annexure ‘F*. ae AM Mots! | cerify thatthe Deponent acknowledged that ehe knows and understands the contents of this affidavit, that sha has no objection to the making of the prescribed oath she considers this oath to be bi ng on her cprpcience. Vaso: sheeted ‘was signed in my presence at. Tet onthis. day of July tits Sint Weapon Gin Govern tee TEST TH) 21 July1972, Soromet bomen EES ESE ee have been Pt biane i Ex Oitecle Gi on anon fs oerecaienest ons “COMMISSIONER OF is TServlens of ae ‘National FULLNAMESS) FRR /T Tre Wiss. antmant ef teak ‘ADDRESS: 7 avy aca ‘Buirding aoe Gy Thnk Bue an, lod eens AREA: 37 Jot Jae2 ‘SxDatnPratty dtamerteoratunnale rei qual Esuoeton v Base Bévoatee, N31 JulwodAnnexure A ‘© provide utrtons meals to leerers in quintile 1 ~3 primary and sxcondary schools, xs wall au identied Gala cok ns who te ported eamaed wool tr | © providesnutetous mela to tigated lowers in ented quate 4 mad 5 wchools i Hine with avaiable Foxes © mea) costs pec lesruer will increase at « minianar of 4 per oeut in all schools and tro Eh elec ot eter “artnet hen en al hoot het eng on in ares where eo re 28 a cal be rode oral eas expt on hey when mall: aerved fener rae al cam alk pared aa tb ered nce west, | i |g canoe amt be ered lt case ewok. High aly prota prodata : vocally | i nis | I" tt f I I # i E j ‘¢ Provincial besinee plane wil be approved f line with the sbavs mixin requirements end. avila true, in bigs yb pee tlt tc res ° gdm hero xe eerie oe et pt blow the maninsen le gai of meas iano onding cost requiremeats, provided te quality compronnized { | t I z ‘ering roma vgme st ete re ‘shoole a do ot feed all eersrs sod Wester Capt) nood fo approve lta i |? Seta nig «rato owls Shel Beng Tine at rd | Loe eon rogues tom proved basins plz sctvsn tat be rabtd inch enaorng ofc | © aottater tnt Novenibr i aa ee eae a eae eee i | 28 Angus 2020 | ah dy; 280 | coum iiss co the develope ad plement ofthe vill ene pa © Implameat moaitoeng and evabuetion plans ‘+ Provide hese reeource capacity ut al selovent levels 1 ‘+ Bahute the performance of te conditional gen! somually ad submit evaluation reports ts the DBE two ‘months fier the end of the fom (© Subunit quarterly nancial end performance epost inctuding consolidated monitoring, parting ‘Texponse system reporesto DBE wher the ead ofeach quarter i 1+ Bava a moating nda chl oped te © develop aad mabe 200021 tana electing noua dates ca which fda wil bo sean eh Sane = cares ina open yeh bra eae |vrawa0a9 Nnnes & Presentation by the DG - mikhuisang@gmail.com - Ginail Presentation by the DG. ‘Verona Rtzn Wit! vera toneigunioe got eto colonia 19a aia, 9. {0s Has, Tin yon Good Evening Coteagaen: ‘Wo wars vedas « Proven ote meeting comenad by he DA severing at 1840, Dang te procera wan Mghghind at tan mun fed dang tor doy 1,01 ne 2020, “Tha roe wan rand lary in unity The DOG We ws tof rm he ting it eu ot ean whan quod toby Bw Ba, ‘yea ned tata wt cremation yl con tothe Pepin wera be NEP DBE Cofeegine woul emaly hate fend off Meee ent (he covet proces of dg > SOPauere ano decunas a under develpmantand rece fr drataton. {err trey soe ti wa esl rn te OG at we ean dt Be Ze eet? That normal cameapendanc o super ha approve tt for pp uta of econ rat meee md approved buhew plat mile. Thora wi be aero conpbce wesc doorarts eval ancount forth foci whch et lace an hee citer wrath atardares rps 2 facing ogi era rade TAIZ). ‘An thea wae marion that he chika raed tance eats tobe booed by he NEP mala, Curent tha enue mara shove tat ‘entangle mea dove not provi even OM cf he mcrae dy ewancs fr ern over eager yeas. Aga, don tay dean ht ha went nena, Ti eno ergs 8 mater entandng loach enc ering, Rls prodtiog fod mc euper whlch raved ‘rome copay and ayia enbeded toe NAP, {want wot wre to ese doc epost perta fr prod medio cane haces we a nt gle fo ea party aren ot ‘cc tel on cated bs ta Neto cel Dorel ach achet WoL Paves oa a Darko provide eal claieohm eppDNed (rovtonha fearon el we ata choos. apt, wd cemcng a prt 8 echoot war te can ett paca mEpropraty, Lacan are epacind bt manta ner he superna ‘educa whan wt thane cher bac & dose ma erm, oopacay IR col or ra. Arata core ged ‘expect to ard ecinlytenced I the ral foro of bocame Day cannot tte Dat cna? {tmnoteur fia pecs a lace? This en mel eduetnetn opens is amar change to fo Progearme and thew ie deal ‘capastyprnkded tery fhe gape. ‘Wie hove mace cu sutmiean blow fe ZOOM meetny ent po canes ot edbecl hes been recs, ecknowiig fe contd ard sorta the Proves, ‘Canve seen by unk tn emacs nau Pal ba Provetl NENP cn art preperation algnment wh Oe fre! ener? ‘Ara mastrg att 9b convent! O00 moro meric ar WOU be very ave Bie onan, ‘Year incr, ‘Yoroan . Weak ROVBAY Denar hoa tin, Povaty Alea and Rural Oevekprrt DDeparnont of Eounetor Ease Cape, (ome c218 ‘\weratnaoSactoaomua Enso Cape Deparnarl of Ecco (50D) vemos no ably tr drct ocr rdrct demas mt rom the vers es f ECDs oral met md ern. Uses slaty reaper er fe caren thy var, ECDGE ol eponetin fe ery Bi ery ot amand or danage weg eit ‘fea he ECDOE Seah atone er enone ASTRO. ‘ects, ao JUNE 2020 ~EAT:OH SCHOOL NUTRITION PROGRALINE (MBHP) ‘The above subject bears reference. Your attention 1s drawn to the following, in ine wlth the High Court Application brought by Equat ‘Eduoation on Friday, 12° June 2020: Saeaere ae aes Yeamers who are not yet back at echoot In order to aval overcrowding and maintain physloal Eaariercmermerareteertenenmee {tia expeeten iigt loamore wil leave the echoo! premises for home, as soon as they have recalved ‘heals. sind ettn don viene a eos eaeMINISTER, BASIC EDUCATION REPUBLIC OF SOUTH AFRICA Provto Bag X003, Pretoria, 0001 «Ta (012) 957 3000 «Fax (O12) 323 5060 avetm Bog ABO, Cape Town, 000 Te. (121) 486 7350» Fax (O21) 485 4788 ‘ictal. ip dnnw education gz Ratno: e886 Enquines: Ms N Seatt Tol, 4012) 387-3419 ‘Ema: secitinigcbe.govza Ms P Boshielo MEC: Education Limpopo Private Bag X9489 POLOKWANE 0700 By e-mail: matloumj@edu limpopo.gov.za Dear Ms Boshielo EQUAL EDUCATION JUDGMENT- COMPLIANCE WITH COURT ORDER “The purpose of this letter in to alert you to the urgent requirements of the court judgment dated 17 July 2020 on the National Schoo! Nutrition Programme (NSNP) matter that was edged by Equal Educetion and others. According to the judgment, we are required to ‘submit detailed plans to the court on feeding all beneficiary leamers, whether they are back in school, of not. | therefore request your support to ensure full compliance to the court order. Under paragraph 103 of the judgment, the following Important points that require urgent action were noted: © that the Members of Executive Councsl (MECs) are each ordered within 10 days to fle at the North Gauteng High Court under oath, and provide @ copy to the applicants, a plan and programme which they wil Implement without detay in respect of each schoo! under their jurtediction; ©. that the MECs should indicate when wl all ofthe qualifying leamers receive a daily meal under the NSNP, whether they are attending schoo! or studying away from school as @ result of the COVID-19 pandemic, and ‘© what steps they have taken to achieve that; what further stops will they take to implement that plan and programme afd when will they take such steps. ah ty‘The MECs are also ordered to fle reports every fifteen (15) days trom the date af this order ntl itis dlacharged by the Court, setting out the steps they have taken to Implement the plan and programme, when they took such steps, and how many leamers in each district in their area of jurisdiction are recelving. and how many are not receiving a daily meal in terms of the NSNP. You are therefore kindly requested to report on the three butlets under paragraph 2 by 28 uly 2020, Furthermore, please use the template below to report on every school in the province: - EMI Mame of Distric Total Numbe Numbe Number Other 8 school t Enrolmen 5 or of of (where Wo. t leamer learner feamers applicabie s fed s yecetvin |} | dally at fetching | | soheot g monthly cooked food meas = parcels | from _ schoo! | ox Akofang = JTG 600 350 100 50 o ‘Secondar District y With regard to the requirement to report every 16 days as required by the judgment, you are hereby advised to optimally uttiee the South African School Administration and Management ‘System to collect reliable data, Please put systeme and processes in place to ensure full compilance. It has also been brought fo my attention that provinces are currently in the process of reviewing their 2020-21 NSNP business plans ta include feeding of leamers that are not yet back In schools. Furthermore, the reviewed Canditional Grant Framework indicates that food parcels for learners In far-flung areas should be costed at R170 per month. The cost of the compliance to these requirements of the Conditional Grant Framework, which are closely related to the court judgment, may resutt In withholding or stopping of funds as prescribed by the Division of Revenue Act. ‘Trusting that the above matters receive the urgency they deserve. ‘Yours sincerely Vette NN MRS AM MOTSHEKGA, MP- DATE: 28 JULY 2020Atsr-ngeue re (MINUTES OF THE ZOOM INTER-PROVINCIAL MEETING HELD WITH NATIONAL SCHOOL NUTRITION PROGRAMME PROVINCIAL MANAGERS ON 27 JULY 2020 1. Procedural matters: Attendees: ‘Ms N SeUiti-Director DBE - Chairpersan Ms P Mlambo-Director, Northern Cape Ms D Mompati NSNP Manager Northern Cape Ms L Sopotela- Director, Western Cape Mr Taupedi- NSNP Manager, North West Ms V Witbool- Director Eastern Cape Ms $ Dunn- NSNP Manager, Free State MrT Leshoro NSNP Managers, Gauteng, Dr F Kumalo-Chief Director DBE Officials from NSNP DBE: Ms M Maduria, Ms C Muller, Ms M Mohube, Ms S Behane, Ms N Mashigo, Ms K Maraba, and Mr E Ndou. ‘Apologies: Mpumalanga Province. 2. Matters for Discussion: 2.1. Opening and Welcome: The Director, Ms N Sediti opened the meeting and welcomed everyone. The purpose of the meeting was highlighted In light of High Court Judgement and agenda items below. 2.2 Agenda: © Court Judgement © Feeding aillearners ‘© Mechanism in collecting data as per the Court Order ° Good practices from Provinces and how challenges were addressed 3, Court Judgement: ‘The Department of Basic Education provided a summary of the Court judgement/ “Order” as follows: @ 103,SThe Minister Is ordered without delay to ensure that the NSNP Is implemented In such a manner that it provides a dally meal to ail qualifying learners. © 103.9 The Minister is ordered within 10 days to file at this Court under oath, and provide to the applicants, a plan and programme which she will implement without delay so as to ensure that the MECs carry out without delay thelr duties referred to above, ‘2 103.21 The MECs are each ordered within 10 days to file at this Court under oath, and provide a copy to the applicants, a plan and programme which they will wilhimplement without delay so as to comply with their duties referred to above, and which address the following matters: 103.11.1 In respect of each school under thelt jurisdiction, when all of the qualifying learners will receive a dally meal under the NSNP, whether they are attending school or studying away from school as a resuit of the Covid-19 pandemic; ‘The judgement further required the Minister to Indicate the following: ‘What steps to be taken to achieve that; What further steps they will take to implement that plan and programme and ‘When they will take eath step. The Department further indicated to the provinces that Minister is required to provide to file'a report every fifteen days until the order Is ‘discharged by the court. The meeting agreed to the ful comprehension on the implications of the Court judgement. 4, Each Province reported on the current mechanism of collecting data of current feeding of all learners: Province Feedback on feeding of all |Good Practices from Iearners, Provinces Eastern Cape The province collect data daily using the template provided by DBE and the province consolidates and submit to DBE. Free State ~Tinformation is collected by | All'schools are feeding. Districts and submitted to the Province. KwaZulu Natal The province Is using fve| This Is the success of the delivery model of food to | province as they. have the learners the School | buy-it from all stakeholders Governing Bodies are given the powers to choose the model that would. best sult ‘their context. In collecting data the provinces uses the daily feeding register and consolidated quarterly. Z| ‘The province has developed = tool on collecting data deily by Districts and Information subfnitted to the Head Office. ‘The Province Is using Human | Resource Management | _Lsystem {HRMS} to collectdata_The information i collated by districts. and LL submitted to the province. North West Data Is collected daily using the ‘school managemestt -——++ system (SASAMS) _ ‘Western Cape The provincs is providing | Learners receive their meals meals to learners and data Is | at schools and other learner collected daily by the District | collect the meals assisted by using Goggle Document and | the Parents. the Information provided to | The province has also reduce the Provincial Department. | the delivery quantities for All schools are connected to | secondary schools by 50 % the online platform. ‘and primary schools by 75% _| Challenges: All provinces indicated food wastage as food will be prepared according to the number of leamers to be fed dally and only few will attend to collect the meals or eat at schools. © Free State also reported a schoo! with 5 of 6 Volunteer Food Handlers who tested positive. In one area called Philpolls the schools will prepare and learners will not turn- up. Principal are forced to carry the cooked reals to the communities which is extra ‘work for the school managers. © KZN, the dally collection of data has been Identified as a weakness as the Court requires the data of learners fed fortnightly. This requires provinces to submit that information to the National offices on a weekly basis ‘Way forward: @ DBE to give guldiance on how to use the savings obtained from feeding less number of Jearners ‘2 DBE to get clarity on decontamination af the kitchen fram Health Promotion Directorate 2 _NSNP should be clear on the narrative that the Department does not provide scholar transport for learners who normally commute to get t0 school; 48 the Impression is that learners must be provided with scholar transport t6 collect meals © PEDs will receive a schedule of dates to submit Plans/reports; 1st Report is due on 31 July 2020,‘SCHEDULE OF SUBMISSION OF THE FEEDING REPORTS AS PER COURT JUDGEMENT PEDe subralasion dates DBE submission dates 32 July 2020 7 August 2020 14 August 2020 i August 2020 28 August 2020 {04 September 2020 ‘11 September 2020 118 September 2020 (09 September 2020 16 October 2020, 23 October 2020 30 October 2020 (06 Novernber 2020 13 November 2020 '20 November 2020 27 November 2020 (04 December 2020 G1 December 2020 128 December 2020 25 December 2020 ‘Conclusion: Learners are aware that food is being prepared dally at schools but getting them to collect the food is @ big challenge: The Department to caution provinces to use the regulations in providing the meals to learners and to consult the Legal Section in addressing the current judgement report. Re