Provincial education departments may not suspend food sales at public schools. Education departments in Limpopo, Gauteng and the Free State distributed circulars with these instructions to schools and principals, says Dr Juané van der Merwe, Deputy CEO of the Federation of Governing Bodies of South African Schools (FEDSAS).

“This follows after recent incidents of food poisoning resulting from food sold mostly at spaza shops and stalls located off school premises. Several learners lost their lives. This is an extremely serious matter that urgently requires the attention of the relevant authorities, including the Department of Health and local governments,” says Van der Merwe. 

 “However, these provincial education departments’ circulars are presented as binding but have no legal power to establish rights or duties, unless through specific statutory authorisation. Without such authorisation these types of instructions are unlawful.”   

 Dr Jaco Deacon, CEO of FEDSAS, says the assumption is that the suspension of food sales will help to protect learners. “Unfortunately, it will not make much of a difference, if any. Aside from the fact that the suspension is unlawful, it does not address the problem since the contaminated food was not purchased on school premises.”

Deacon says public schools have a duty to raise additional funds, often through commercial activities such as tuck shops, restaurants, and hostel services. “Did these education departments even consider what hostels are to do when food provisioning is suspended?”

 “This does not imply that municipal bylaws and health regulations are to be ignored. Schools have to comply with all applicable regulations of the Department of Health and local government. Instead of unlawful and ill-considered instructions, education departments should rather see to it that schools adhere to health and safety regulations. Cooperative governance is the foundation of our country’s education system, and that includes other government departments as well.”

Deacon says some provincial education departments have a long history of poor decisions that are almost always also unlawful. “With a problem like this, something that has resulted in tragic loss of life, cooperation is the only strategy. Not only between authorities, but also communities. Speak to governing bodies, get buy-in from school communities, do what can and should be done lawfully within your department’s sphere of influence. Otherwise, it will add to the existing problem and create several new problems.”

Deacon says the issue is not the fact that efforts are made to address the problem but rather the way in which it is done. “It should be lawful. Officials may only do what the law allows them to do. The Department of Health and local governments should also fulfil their responsibilities towards communities.”