Clearing the Red Tape – Towards a Balanced Regulatory Framework for Early Childhood Development




Early Childhood Development, Regulatory Law, Rule of Law, Children's Rights, Administrative Law, state capacity


The state of early childhood development (ECD) provisioning in South Africa is dire. An onerous regulatory regime is one factor contributing to this crisis. Instead of a developmental and enabling framework, the regulatory landscape is convoluted and overly burdensome. This in turn frustrates the realisation of the rights of children. The author argues that regulatory reform in this context is not only desirable but constitutionally required. The article begins by providing an overview of the evolution of the ECD regulatory landscape in South Africa with a particular focus on health and safety regulation. A shift from under-regulation in the pre-constitutional era to over-regulation in the constitutional era is identified. The author proceeds to argue that South Africa's current state of affairs is animated in part by a failure to articulate the full set of interests that should inform a balanced ECD regulatory regime. Pathways towards a more coherent and coordinated regulatory framework for ECD health and safety standards are suggested. The proposed reforms, albeit limited, have the potential to offer immediate relief to both under-resourced providers and overburdened administrators


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Author Biography

Nurina Ally, University of Cape Town

Senior Lecturer, Faculty of Law, University of Cape Town, South Africa




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Case law

BE obo JE v MEC for Social Development, Western Cape 2022 1 SA 1 (CC)

Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 3 SA 936 (CC)

Democratic Alliance v President of South Africa 2013 1 SA 248 (CC)

Earthlife Africa Johannesburg v Minister of Energy 2017 5 SA 227 (WCC)

Glenister v President of the Republic of South Africa 2011 3 SA 347 (CC)

Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)

Government of the Western Cape: Department of Social Development v C B 2019 3 SA 235 (SCA)

Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd In re: Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC)

Kruger v President of the Republic of South Africa 2009 1 SA 417 (CC)

Liebenberg v Bergrivier Municipality 2013 5 SA 246 (CC)

Minister of Justice and Constitutional Development v Southern African Litigation Centre 2016 3 SA 317 (SCA)

Minister: Western Cape Department of Social Development v BE obo JE 2021 1 SA 75 (SCA)

Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 2 SA 674 (CC)

Rates Action Group v City of Cape Town 2004 5 SA 545 (CPD)

Skole-Ondersteuningsentrum NPC v Minister of Social Development 2020 4 All SA 285 (GP)

Sonke Gender Justice NPC v President of the Republic of South Africa 2021 3 BCLR 269 (CC)


Child Care Act 74 of 1983

Child Care and Protection Act 3 of 2015 (Republic of Namibia)

Children's Act 38 of 2005

Children's Act 33 of 1960

Constitution of the Republic of South Africa, 1996

National Building Regulations and Building Standards Act 103 of 1977

National Health Act 61 of 2003

International instruments

United Nations Convention on the Rights of the Child (1989)

Government publications

GN R2612 in GG 10546 of 12 December 1986

GN R261 in GG 33076 of 1 April 2010

GN R920 in GG 37081 of 29 November 2013

GN 1229 in GG 39561 of 24 December 2015

Internet sources

Ally N 2021 Submission on the Children's Amendment Bill, 2020: Department of Public Law, University of Cape Town accessed 8 March 2023

Ally N 2021 Early Childhood Development and Intergovernmental Coordination: Presentation to the Portfolio Committee on Social Development by the Faculty of Law, University of Cape Town accessed 8 March 2023

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download/12309 accessed 8 March 2023

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document/201409/childhooddev0.pdf accessed 3 March 2023

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How to Cite

Ally, N. (2023). Clearing the Red Tape – Towards a Balanced Regulatory Framework for Early Childhood Development: . Potchefstroom Electronic Law Journal, 26, (Published on 12 October 2023) pp 1 – 29.