Freedom Stationery (Pty) and Another v MEC for Education, Eastern Cape and Others (59/2011) [2011] ZAECELLC 1 (16 March 2011)

Freedom Stationery (Pty) and Another v MEC for Education, Eastern Cape and Others (59/2011) [2011] ZAECELLC 1 (16 March 2011)

The court found that the tender process was procedurally and substantively unfair. The applicants were not afforded an opportunity to respond to adverse information regarding their tax compliance, in violation of the audi alteram partem rule and the requirements of PAJA. The cancellation of the tender and subsequent award to the third and fourth respondents were irrational and unreasonable, as both were also disqualified on the same grounds used to exclude the applicants. The court weighed the right to fair administrative action against the right to education, acknowledging the prejudice to learners but finding that the applicants' rights had been unlawfully infringed. The urgent...

Citation
[2011] ZAECELLC 1
Parties
Applicant: Freedom Stationery (Pty) Ltd; Applicant: Afropulse 46 (Pty) t/a Power Stationery; Respondent: Member of the Executive Council for Education, Eastern Cape; Respondent: Superintendent-General, Department of Education, Eastern Cape Government N.O.; Respondent: Impala Stationery (Pty) Ltd; Respondent: Premier Stationery (Pty) Ltd; Amicus Curiae: Centre for Child Law
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
16 March 2011
Case Number
59/2011
Procedural Posture
Urgent Application / Interim Interdict Pending Review
Outcome
Urgent interim interdict granted in favour of the applicants pending review; costs awarded against first and second respondents.
Judges
E Revelas
Legal Topics
Promotion of Administrative Justice Act, Preferential Procurement Policy Framework Act, Audi Alteram Partem, Right to Education, Procedural Fairness, Interim Interdict
Administrative Law Civil Procedure Constitutional Law Promotion of Administrative Justice Act Preferential Procurement Policy Framework Act Audi Alteram Partem Right to Education Procedural Fairness +1 more

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Parties

Freedom Stationery (Pty) Ltd

Applicant

Afropulse 46 (Pty) t/a Power Stationery

Applicant

Member of the Executive Council for Education, Eastern Cape

Respondent

Superintendent-General, Department of Education, Eastern Cape Government N.O.

Respondent

Impala Stationery (Pty) Ltd

Respondent

Premier Stationery (Pty) Ltd

Respondent

Centre for Child Law

Amicus Curiae

Procedural Posture

Urgent Application / Interim Interdict Pending Review

Legal Issues

  1. 1 Whether the cancellation and subsequent award of the tender for school stationery was procedurally and substantively fair.
  2. 2 Whether the applicants were denied the opportunity to respond to adverse information regarding their tax compliance.
  3. 3 Whether the rights to fair administrative action and the right to education were properly balanced in granting interim relief.

Ratio Decidendi

The court found that the tender process was procedurally and substantively unfair. The applicants were not afforded an opportunity to respond to adverse information regarding their tax compliance, in violation of the audi alteram partem rule and the requirements of PAJA. The cancellation of the tender and subsequent award to the third and fourth respondents were irrational and unreasonable, as both were also disqualified on the same grounds used to exclude the applicants. The court weighed the right to fair administrative action against the right to education, acknowledging the prejudice to learners but finding that the applicants' rights had been unlawfully infringed. The urgent...

Court Disposition

Urgent interim interdict granted in favour of the applicants pending review; costs awarded against first and second respondents.

Orders

  • The first and second respondents are interdicted from concluding any agreements with the third and fourth respondents or performing in terms of tender SCMU6-10-11-0005 until the review is finalised.
  • The hearing of the review application is expedited and set down within a week or two.