Freedom Stationery (Pty) Ltd v Member of the Executive Council, for Education, Eastern Cape

• Jurisdiction: South Africa
• Judge: Revelas J
• Judgment Date: 10 March 2011
• Docket Number: 59/2011
• Court: Eastern Cape Division
• Hearing Date: 07 March 2011
• Citation: 2011 JDR 0192 (ECB)

Revelas J:

[1]

The applicants sought an urgent interim interdict pending the finalisation of a review application, which was instituted on the same day as this application, challenging two decisions of the first

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and second respondents. The first decision is the decision sought to be set aside on review to cancel a tender for the provision of stationery to schools in the Eastern Cape, and the second is the decision to award that tender or part thereof, to the third and fourth respondents. The applicants also seek to set aside any contracts as may have been concluded with these respondents and a directive that the second respondent adjudicate afresh on the tender for the contract concerned, or to advertise the tender afresh.

[2]

On 10 March 2011, I granted the urgent interdict in favour of the applicants and made certain costs orders against the first and second respondents. At the hearing I indicted that I would make my reasons for the order granted at a later stage. These are my reasons.

[3]

The interim relief sought in this application was for an order interdicting the first and second respondents from concluding any agreements with the third and fourth respondents in respect of or performing in any way, in terms of the tender for contract SCMU6-10-11-0005, until such time as the review is finalised. The urgency of the matter is evident from the allegations contained in the affidavits filed by all the parties before me.

[4]

The applicants are confident that the review application could be heard as early as 17 March 2011, during the ordinary motion court and have set shortened time periods in their notice of motion for the dispatch of the record by the first and second respondents and the filing of further affidavits in their application for review which is brought in terms of the provisions of Section 6 (2) (c) and (d); 6 (2) (f) (i) and (ii), and 6 (2) (i) of the Promotion of Administrative Justice Act 3 of 2000. ("PAJA").

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[5]

The tender in question concerns an agreement for the manufacturing packaging and supply of scholastic stationary for grades R-12 in a large number of schools in the Eastern Cape.

[6]

At the onset of the hearing of the application, I granted a request by the Centre for Child Law ("the Centre") to intervene as amicus curiae in the matter. The Centre represented by the Legal Resources Centre, elected not to file any affidavits in this matter, but I was given a letter addressed to the State Attorney and to the applicants' attorneys of record, tabling its position. Ms Sarah Sephton of the Legal Resources Centre, the author of the letter, raised the concern that the relief sought made no provision for the scholars affected by the dispute between the parties which raised important constitutional issues.

[7]

The affected schools (those which formed the basis for the tender) are 2380 in number, are typically "no fee" schools and are of the poorest schools in the province. The parents of these learners are therefore not likely to provide stationary for their children. According to the Centre, the misfortune of these approximately 688 482 learners is caused by and perpetuated by the litigation under consideration.

[8]

The Centre submitted that, should the third and fourth respondents be interdicted from supplying the schools with these materials, the learners will be without stationary for a further three weeks on the applicants' "optimistic view of the time that the review process would take", thus severely prejudicing their right to education which is enshrined in Section 29 of the Constitution.

[9]

In this urgent application, the right to education had to be weighed up against the right to fair administrative action, also

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protected in the Constitution, as well and the provisions of sections 217 (1) of the Constitution which protect those who contract with the Government if the process is not "fair equitable, transparent competitive and costs effective".

[10]

The applicants' prospects of success in the review application would have to be strong if their rights were to be given preference to the right of access to education. In determining this question it was necessary to scrutinize the factual background of the alleged violations of both parties' rights, and the applicable principles. These are set out in the following paragraphs.

[11]

During 2010, the Department advertised a tender under contract no SCMU6-10-11-005. The closing date for the submission of the tender was 2 September 2010. Both applicants submitted tenders. The contract advertised was for the "manufacture, packaging and supply of scholastic stationary for Grades R-12 to local distribution centres in the Eastern Cape (2010-2011)". The applicants allege that on 1 December 2010 an official of the Department forwarded a recommendation that the tender be awarded inter alia to the first and second applicant. The applicants state that a copy of this recommendation is to be discovered by the second respondent.

[12]

On 2 December 2010 the second respondent requested the applicants to hold their bids valid in all respects, i.e. by not introducing any escalation in prices for the period 2 December 2010 to 2 February 2011, which request was adhered to and the bids were kept open until 2 February. On 17 December 2010 Mr Mannya of the first respondent notified the first applicant that it, along with five other tenders had received the first respondent's support for the award of a tender in an amount of no less than R42 002 205.13.

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It later transpired that the third respondent was also part of this group. The fourth respondent was not. A copy of a letter containing this notification is attached to the applicants' papers. A meeting to be held with the group of tenderers on 20 December 2010 was however cancelled.

[13]

On 7 January 2011, just before pupils started to get ready to start the new school year, the first applicant wrote to the first respondent to enquire about the progress of the awarding of the contract, based on its understanding that the all processes of the bids in question have been completed by the Department as it had received no instructions yet.

[14]

On 11 January 2011 a notice appeared in the news papers cancelling the tender process. Mr Cassim, who deposed to the first applicant's founding affidavit, stated that he received reliable information on 8 February that it was the second respondents intention to award the contract to the third and fourth respondents. (This has in fact occurred since and has been the case since 25 February 2011. Counsel for the first and second respondents informed Hartle J of this development in open court on that day and I was also so advised when the matter came before me).

[15]

Through its attorneys, the first applicant, on 8 February 2009 posed the very relevant question to the first respondent, after a period of approximately seven...