Cape Town - The Supreme Court of Appeal has upheld an appeal finding that Social Development Minister Lindiwe Zulu had not unlawfully and unconstitutionally held onto subsidy funds for early childhood development centres during the hard lockdown, as was found by a lower court recently.
Zulu appealed against a high court decision that found the Minister had violated the Constitution in relation to the payment of subsidies to ECDs during the lockdown and ordered them to rectify the situation.
According to court documents, the evidence was that the Minister had undertaken to pay the subsidies of ECDs during the lockdown and had instructed the MECs in eight provinces to do so.
The MECs decided to only pay 60% of each subsidy to cover administration costs and salaries while the other 40% was intended to cover the cost of nutrition for children attending ECDs.
It was done in such a manner as ECDs could not operate during the hard lockdown and the children who had attended them were not permitted to leave their homes.
This part of the subsidy was repurposed to increase child support grants and to fund food parcels for distribution to those in need.
As soon as the children could return to their ECDs, the full subsidy was paid again.
Prior to the hearing of the appeal, the parties were requested to file heads of argument on whether the appeal was moot in light of the fact that the state of disaster – imposed in terms of the Disaster Management Act as a result of the Covid-19 pandemic – had been lifted and the non-payments complained of related to the 2020/2021 financial year.
The appeal was eventually heard on its merits and the SCA found that the high court had misdirected itself on the facts.
In his judgment, Judge Clive Plasket, said: “Most of the MECs decided to pay 60% of the subsidies for the period when ECDs were prohibited from operating.
“This percentage of the subsidy constituted the salaries of staff and the administration costs of ECDs.
“It did not cover the nutrition component of the subsidies because the children were precluded from attending the ECDs...
“I cannot see what prejudice the management of ECDs could possibly have suffered as a result of this arrangement: if the nutrition component had been paid to them during the lockdown, they could not lawfully have used it for the intended purpose.
Those funds would have had to remain unspent in each ECD’s bank account and, presumably, be returned to the provincial department concerned.
As ECDs were, in effect, mothballed for the period of the lockdown, the payment of the administrative component of the subsidy and salaries kept them in a position to re-open as soon as the Covid-19 position improved sufficiently to allow this,” said Judge Plasket.
The SCA found that there had been no violations of constitutional rights on the part of the Minister and the MECs and set aside the order of the high court.
Cape Times