Schools nutrition contract not legally terminated, says analyst

Ending schools’ nutrition contract may come back to haunt KwaZulu-Natal Education MEC Mbali Frazer. Picture: Doctor Ngcobo

Ending schools’ nutrition contract may come back to haunt KwaZulu-Natal Education MEC Mbali Frazer. Picture: Doctor Ngcobo

Published Apr 28, 2023


Durban — The KwaZulu-Natal Department of Education’s (DOE’s) termination of Pacina Retail’s contract was abrupt and haphazard, said legal analyst advocate Mpumelelo Zikalala.

The DOE has been under fire for the past few weeks after it awarded the National School Nutrition Programme contract worth R2 billion for feeding more than two million pupils at about 5 000 schools across the province to one supplier – Pacina Retail – who battled to deliver.

Although he is the chairperson of the the Coastal Black Lawyers Association advocate Zikalala was speaking in his own capacity and as a legal analyst.

Zikalala, said that contrary to the widespread belief that the matter had been put to finality, the matter might end up in court should Pacina director Manzini Zungu decide to challenge the decision.

Attempts to reach Zungu were unsuccessful.

However, a source close to him said yesterday the DOE went ahead to terminate the contract without knowing what details Zungu was going to present.

The source regarded the termination as unlawful.

The source said Zungu still believed he had not failed but was sabotaged. The source said some of the suppliers awarded jobs by the DOE to deliver food to schools were not collecting food items and this made it seem that Zungu was failing to do the job.

Zikalala blamed both parties for failing to handle the matter in a legal manner, adding both had failed to keep to service level agreements or standard general terms of the contract.

Just before the ANC announced that it had directed the government to terminate the contract, Zungu sent an email in which he informed the DOE that he had decided to opt out, subject to all costs incurred being paid, adding that the details would follow.

According to a letter from the DOE seen by the Daily News, the DOE wrote to Zungu informing that it regarded his letter as invoking Clause 11.1 of the service level agreement.

Zikalala said Zungu was not supposed to send the letter to the department.

“He could have waited for the department to be the one informing him. That could have strengthened his position to put whatever conditions he would have wanted to since it would have been the department that would have approached him,” Zikalala said.

Zikalala said the DOE was distracted by Zungu’s letter and forgot to go back to the contract agreement and look at the terms and conditions before accepting what it thought was a straight withdrawal by Zungu.

Zikalala also questioned the ANC’s announcement of Zungu’s termination of the contract publicly, saying it could also strengthen Zungu’s case since it was announced by a political party that was not a signatory to the contract.

Zikalala added that the DOE failed to act on the ANC’s instruction which said the contract must be ended within the level service agreement framework.

“For me, the matter could take more time to be resolved since it was not properly legally handled,” Zikalala said.

Speaking on behalf of service providers, Xolani Shange said although this was a step forward they did not yet regard it as a victory since they also had reservations on the legality of the changes.

The DOE had not commented.

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