When the courts say a provincial government is “at war” with the poor of its province, you might expect the shame to produce a ceasefire.
But a recent decision delivered by Judge Elna Revelas at the East London High Court indicates that the Eastern Cape’s “war” is far from over.
Her judgment concerns one of the most common issues in South Africa’s civil courts – disputed tenders. In this case, two stationery suppliers, Freedom and Power, had brought an action against the MEC for education in the Eastern Cape and other parties.
The fight involves a tender to manufacture, package and supply stationery in several provincial schools for the 2011 school year. As the value of the tender was more than R42 million, the stakes were high enough to warrant going to court when things fell apart.
At first, Freedom appeared to have been successful; it was informed that it, along with some other companies, had won departmental approval. In January, however, just before pupils were due to start school again, a notice appeared in the media cancelling the tender process. The department then awarded the contract to a group that excluded Freedom and Power.
Eventually, the department said it had disqualified Freedom because, unknown to the company, Sars had withdrawn its tax clearance certificate.
Freedom immediately contacted Sars, resolved an apparent misunderstanding, and a new clearance certificate was issued.
According to Freedom, before rejecting its bid, the department should have contacted the company to inform it of the problem so that it could make representations and, if possible, resolve the situation.
Judge Revelas agreed: the department was obliged to notify a tenderer in such a case, and she ruled that the tender process had been procedurally flawed and substantially unfair.
But the judgment didn’t end there.
The Centre for Child Law had become involved in the dispute to speak for the many children who would not have stationery until the issue was finalised. Over 2 300 schools were affected, typically “no-fee” schools, offering classes to the poorest children in the province. The parents of the roughly 688 480 pupils involved would not be able to provide stationery themselves while the dispute was resolved.
The best interests of children should be of paramount consideration, it was argued, and any supply delays should be kept to|a minimum.
At this point, the judge, already concerned about the flawed and unfair tender procedure she had found, became even more pointed in her comments. She said it was not surprising that the Centre for Child Law had become involved in the dispute because the Department of Education in the Eastern Cape had “virtually ceased all operations”.
She said school transport and feeding programmes had been scrapped and many schools were without teachers.
She said she couldn’t simply intervene and order that the tender be given to one party or another as this would offend a basic legal principle, “namely that a court should not write contracts for the parties before it”.
The absence of stationery, transport and, in some cases, of food at so many schools was “directly attributable to the actions (or inaction) of the department”, she said, adding that the problems besetting the department in this regard were of its own making.
Judge Revelas ordered that the costs of the case be paid by the department and urged that it find temporary sources of stationery until the legal dispute was properly resolved.
Some time ago, the Supreme Court of Appeal dealt with a series of cases in which the Eastern Cape provincial authorities prevented many destitute people from getting their pensions, and concluded that the province was at war with its most vulnerable citizens.
Ten years later, and the war has simply shifted scope. Its target now? The children of the poorest in the province.