Pretoria - A book publishing company will lose out on R13.4 million it spent on printing textbooks for pupils in Limpopo because an Education Department official went through the wrong channels in ordering the books.
Isaac Shabangu Publishers, trading as Lingua Franca Publishers, turned to the Gauteng Provincial Division of the High Court, sitting in Pretoria, to claim money from the Minister of Basic Education.
But while having sympathy with the plaintiff, Judge Cynthia Pretorius said last week she had no choice but to dismiss the claim.
“The consequences to the plaintiff are harsh but the court cannot find in its favour,” she said.
This was because the transaction was invalid as the officials did not obtain permission through the correct channels.
The judge said it was common cause that in terms of the Public Finance Management Act, the procurement of goods to the value of more than R500 000 could only be awarded after competitive bids had been secured by accounting officers or other high-ranking department officials.
A textbook shortage developed in schools in various provinces during 2011 and the minister ordered the central procurement of textbooks.
It was decided that the national catalogue for textbooks for Grades 10 to 12 would be used to determine which book was the most appropriate for each subject.
It was also decided that the national department would assist the provincial departments to procure the textbooks.
A team of expert teachers was tasked to compile a list of three textbooks in each subject in each grade.
An acting director-general of Branch C was appointed to liase with provincial departments regarding the books and quantities required. The judge said it was common cause that Branch C - mandated with curriculum development and support - had no authority to enter into agreements with publishers to procure textbooks.
This branch sent a memorandum to the national director-general in the office of the minister regarding the ordering of books. The director-general is the only person who has the authority in the department to give the go-ahead for the orders.
The memorandum was, however, incomplete and lacked information such as estimated cost of the books.
Approval was asked for by the official from Branch C from the director-general to directly contact the publishers to pay for the books.
The director-general did not give his approval but insisted it be handled at national level. This was because bids had to be obtained from three publishing companies in each grade and each subject.
The official from Branch C nevertheless ordered 124 594 copies of the book Fast Track Business Studies at R153.99 a book from the publishers. With a discount, this amounted to R13.4m.
The publisher started printing the books after the official confirmed the formal order would soon follow. She also ensured that the books would be delivered to one destination in eight provinces and to 23 district offices in the Eastern Cape.
The official also thanked the publisher for “assisting the department in this critical project to provide textbooks to underperforming schools”. It was said that with the assistance of this publisher, it was hoped to improve the National Certificate pass rate for 2011.
Judge Pretorius said it was clear from this communication that no formal order was sent to the plaintiff. It was also clear that the director-general did not sign or authorise the transaction.
When the official realised the mistake, she told the publishers to immediately stop printing, but the publisher said it was impossible, as the books were being printed in sequence.
The director-general was adamant he never gave the go-ahead for the transaction.
The judge said it was clear that the officials ordering the books knew they were not allowed to do so and the Education Department should thus not be saddled with the bill.