Litigation and social mobilisation for early childhood development during COVID-19 and beyond

Background: Litigation has been utilised to advance a range of socio-economic rights in post-apartheid South Africa, including the right to basic education. Nonetheless, there has not been significant litigation or sustained broad-based mobilisation around issues impacting the early childhood development (ECD) sector in the democratic era. The coronavirus disease 2019 (COVID-19) pandemic, however, saw some ECD stakeholders turning to the courts to advocate for their survival, as well as to mobilise and advocate for sector reforms.Aim: This article aimed to critically reflect on the role of litigation and social mobilisation in advancing the right to ECD during and beyond the COVID-19 pandemic.Setting: The article assesses two South African cases with national implications.Methods: The article critically assesses two South African cases relating to ECD during the pandemic. At the time of writing, these were the only South African judgements specifically relating to the impact of COVID-19 on the ECD sector.Results: The two cases played an important role in: (1) reopening the ECD sector during the pandemic; and (2) making efforts to ensure that the sector could remain open. However, the cases were not based on a holistic rights-based approach to ECD, which remains an area for further development.Conclusion: The article concludes that litigation may play a significant role in advancing children’s rights to ECD, particularly as a complement to broader social mobilisation strategies. The cases highlight the (1) need and potential for building a holistic rights-based foundation of ECD jurisprudence post the pandemic; and (2) strategic use of litigation interventions as part of broader mobilisation strategies.