South African Booksellers Association v MEC for Education and Culture and Another (15477/04) [2004] ZAGPHC 29 (5 August 2004)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO:15477/04

DATE:2004-08-05

In the matter between

SOUTH AFRICAN BOOKSELLERS ASSOCIATION....................................................Applicant

and

MEC FOR EDUCATION AND CULTURE....................................................... First Respondent

PTYTRADE 73 (PTY) LTD t/a EDU-SOLUTIONS..................................... Second Respondent

WILLIS, J: The applicant approached the court by way of urgency. The proceedings in the urgent court were postponed to be heard before me today. The relief sought by the applicant in Claim A is as follows:

1. That pending the finalisation of review proceedings instituted in terms of Claim B below, the first and second respondents be

interdicted and restrained from:

1.1 rating any electronic procurement database whereby public schools' governing bodies have been allocated the function to purchase text books, educational materials or equipment for such schools, are compelled to place all requisitions through the second respondent

and/or the electronic systems operated by it.

1.2 Hindering any governing bodies of the public schools envisaged in prayer 1 above from purchasing textbooks, educational materials or equipment from any publisher/printer/retailer of its own choice.

1.3 Hindering or preventing any booksellers/retailer from promoting its textbooks, educational materials or equipment to any governing body contemplated in prayer 1.1 above.

1.4 Informing any governing body contemplated in prayer 1.1 above that all requisitions for the procurement of textbooks, educational

materials or equipment for the schools have to be effected through the second respondent only.

1.5 Effecting the procurement of textbooks, educational materials or equipment on behalf of governing bodies contemplated in prayer 1.1 above from the second respondent only.

1.6 Attempting or purporting to do any of the aforegoing.2. That the costs of this part of the application be borne by the first respondent, alternatively that it be reserved for determination with Claim B below. 3. Further and/or alternative relief.

I do not think it is necessary for me to refer in any detail to claim B save to note that it entails a review of a decision taken by the first respondent on 14 June 2004 relating to purchase of textbooks, educational materials and equipment for various schools.

The issue which gives rise to this application was a decision taken by the first respondent to change the purchasing policy in respect of textbooks, educational materials and other equipment for schools. The basis of the case brought by the applicant is that this change of purchasing policy infringes the rights of the governing bodies of schools as provided for in section 21(1){cl of the South African Schools Act No. 84 of 1996.

The respondents raised an objection to the locus standi of the applicant. During the course of argument this morning they did not press the point strongly. I shall assume in favour of the applicant, without deciding the matter, that the applicant does indeed have focus standito bring this particular application. I shall also assume in favour of the applicant, without deciding the matter, that the change of procurement policy by the first respondent may indeed have infringed the rights of governing bodies of the schools covered by section 21(1)(c| of the Act.

Be that as it may, it seems that the prima facie rights, if any, in this matter vest not in the applicant but in the governing bodies of those schools which may be affected. As such I cannot see how the applicant can succeed in its application for even interim relief. In the absence of a prima facie right it is trite that an applicant cannot succeed.

Mr Verster, for the applicant, placed great reliance on the constitutional rights to free trade, fair administrative action and

equitable public expenditure. Of course these rights exist but I cannot see on the papers before me that there has been infringement

of these rights recognised in law. It is of course true that the citizens of this country, as taxpayers, have an interest in the

expenditure of every cent of public money, whether this relates to expenditure on schools, universities, public enterprises, payment of judges salaries, payment in respect of the security forces or whatever. Nevertheless, to recognise a right for the citizens of this company as claimed by the applicant would, in my view, result in administrative chaos. It simply cannot be that persons in the position of the applicant can require courts to second guess decisions of the kind made by the first respondent.

Certain costs were reserved, It seems to me that there is no reason why the applicant should not pay these reserved costs.

The following order is made: The application is dismissed with

costs.

ON BEHALF OF APPLICANT ADV MARIUS VERSTER

Instructed by : Robertze - Steyn

ON BEHALF OF 1 ST RESPONDENT :ADV KABELO LENGANI

Instructed by : State Attorney

ON BEHALF OF 2ND RESPONDENT : ADV PAUL KENNEDY SC

Instructed by:T O Mitha

DATE OF JUDGMENT : 5 AUGUST 2004