The case: from crisis to constitutional moment

The litigation arose from a straightforward but devastating failure of governance. The KwaZulu-Natal Department of Education (“the Department”) had persistently failed to pay subsidies to crèches and other ECD programmes regularly, on time, or at all.

In May 2025, a coalition of ECD organisations and three crèches (Sakhokwethu, Phumelela, and Zenzeleni, represented by the Legal Resources Centre) went to the KwaZulu-Natal High Court. The application proceeded in two parts. In the first part, the court intervened on an urgent basis, ordering payment of all outstanding subsidies to the three crèches by 5 June 2025, though some payments remained incomplete even after the deadline had passed.

The second part addressed the broader, structural dimension of the case. The applicants asked the court not only to supervise the Department’s compliance with its funding obligations but, crucially, to declare ECD a constitutional right of all children in South Africa — for the first time. Significantly, the court’s order does both.

The constitutional architecture: an unenumerated but implied right

While the South African Constitution includes an unusually rich array of children’s rights — the right to family or parental care (section 28(1)(b)); shelter, basic nutrition, basic health care services and social services (section 28(1)(c)); protection from maltreatment, neglect, abuse and degradation (section 28(1)(d)); and basic education (section 29(1)(a)) — it does not explicitly recognise a right to ECD.

A child’s right to development is, however, firmly established in international law. Article 6 of the UN Convention on the Rights of the Child (UNCRC) imposes a duty on states to ensure to the maximum extent possible the survival and development of the child. Article 5 of the African Charter on the Rights and Welfare of the Child (ACRWC) is to like effect. General Comment No. 7 of the UN Committee on the Rights of the Child elaborates on Article 6 specifically in respect of early childhood, recognising that young children have a right to physical, mental, spiritual, moral, emotional, psychological, social and cultural development and development of their personality and talents.

Importantly, section 39(1)(b) of the Constitution requires courts to consider international law when interpreting the Bill of Rights. The question is which constitutional provision offers the best gateway for these international norms. Drawing on a framework developed by Ally and Kazim, the applicants and amicus argued that the appropriate constitutional home for an umbrella right to ECD is the right to life (section 11) together with the right to dignity (section 10). This is because, under both the UNCRC and ACRWC, a child’s right to development is explicitly connected with their right to life. Moreover, South African jurisprudence — notably, O’Regan J’s judgment in S v Makwanyane — has already embraced a richer conception of the rights to life and dignity that goes beyond mere existence and encompasses “the right to live as a human being, to be part of a broader community, to share in the experience of humanity”.

Under the umbrella sit the individual components of ECD — responsive care, early learning, nutrition, health, safety and security, play and cultural opportunities — each with their own constitutional home. For example, the component right to nutrition is housed in section 28(1)(c).

The matter was unopposed (uncontested by the respondents) and resolved by order, rather than reasoned judgment. Hence, the above framework was implicitly accepted by the court, rather than elaborated at length. This task falls to future courts.

Implications beyond South Africa

The case demonstrates that a constitutional right to ECD can be recognised even if it is not explicitly enumerated, and that a rights-based framework rooted in both the domestic constitution and international law can give legal teeth to the claims of some of the most vulnerable members of society.

The constitutional architecture through which this right has been recognised is not uniquely South African. Virtually every constitution contains a right to life. The UNCRC enjoys almost universal ratification. In most jurisdictions, therefore, a young child’s right to development under Article 6 could be drawn into the domestic constitution through the gateway of the right to life.

For hundreds of crèches across KwaZulu-Natal that have been fighting to keep their doors open and their children fed, the order is a vindication long overdue. For South Africa’s young children more broadly, it is a beginning — the foundation on which a rights-based ECD system must now be built.