The Department of Education in Free State is in the spotlight again and not for irregular appointments or school principal smoking hubbly and drinking alcohol in school premises but a tender to print and distribute exam papers.
A judgment handed down, by Free State High Court judge Mathebula ordered both respondents; MEC, Tate Makgoe, and HoD Advocate Tsoarelo Malakoane to provide reasons and records of decisions impugned in the print and distribution of exam papers tender awarded to a consortium.
This followed an application by Lerostyle (PTY) LTD against the MEC, HoD, and three other companies namely Lebone Litho Printers (PTY) LTD, Altron TMT (PTY) LTD, and DSV Solutions (PTY) LTD.
BACKGROUND
The Free State Department of Education (DoE) represented by the first and second respondents sought and was granted permission to participate in the Gauten Department of Education (GDE) contract.
The parties were acting in terms of Treasury Regulation 16A6.6. The contract between the respondents is the same as the one between the GDE and the consortium.
The respondents duly signed a service level agreement which remained valid from 12 August 2019 to 27 March 2021.
It is self-evident that when MEC and HoD embarked on procurement using Treasury Regulations, no competitive tender processes took place.
Lerostyle (PTY) LTD was not an unsuccessful tenderer. It is against these circumstances that the MEC and HoD assert that they are unable to produce the record of the decision which led to the entering of the contract between the consortium and GDE.
Lerostyle (PTY) LTD only presented a case for the interlocutory application and the crux of its contention is that the matter is not ripe for hearing until MEC and HoD have produced the record of the decision.
Lerostyle (PTY) LTD contends that the decision and process followed by MEC and HoD in concluding the contract with the consortium, as it did, was unlawful.
Therefore, without the record of the decision, the matter cannot be properly ventilated before the court. The nub of the contention is that such refusal to file the record of the decision is against the provisions of Uniform Rule 53.
The argument is that Lerostyle (PTY) LTD is denied this right for unjustifiable reasons.
Counsel for Lerostyle (PTY) LTD argued that if MEC and HoD are excused from filing the record, not all evidential material would be placed before the court. That being the case, the court will be restricted from exercising its constitutionally entrenched function in matters of this nature. The point made is that no rights entitling the MEC and HoD to refuse to act following the Uniform Rules thus prejudicing Lerostyle (PTY) LTD.
In a sharp response, counsel for all MEC and HoD raised the same points of contention with slight variations here and there. It is apposite to repeat their formidable arguments in joint opposition to both the interlocutory and main application. Their point of departure is that the interlocutory application does not have a life of its own. It is linked to the main application. The issues raised as points in line are lack of locus standing, the application has been brought beyond the limits set by section 7 of the Promotion of Administrative Justice Act 3 of 2000 (hereinafter “PAJA”), non-joinder, and mootness.
Dealing with both MEC and HoD Judge Mathebula said.
“The first and second respondents simply allege that it does not have the record of the decision. This cannot be true. It is expected of a public entity to assist the court to comply with its constitutional mandate.
In the HSF decision, the court held that an applicant should not be deprived of the benefit of this procedural right unless there is a clear justification therefor.
The reasons advanced by the first and second respondents seem to justify such denial without cogent reasons. The consortium claim that the applicant is after their trade secrets.
There are no details set out to elevate this assertion to a justifiable reason. In any event, the respondents were not interested to argue this point except that they sought an order disposing of this matter on other grounds without adjudication of the merits.”
It’s not the first the department finds itself in toilet, it was accused of making appointments on the 24 December 2021 when companies where on holidays.
We previously reported on the trip to India that cost millions in the failed mathlab project.
Howard Ndaba, Spokesperson for Free State Education said, “This matter is before the court and sub judice and therefore we are reluctant to respond.”
If you have news or tips please email us news@stepupsanews.co.za or WhatsApp 0685000246
More Stories
A company with links to Patrick Phuti gets R97 million tender
“Cde Thabo is out of line” – Setai to Motsoeneneng
Women shot dead a few kilometres from Men’s Indaba venue