HERE’S a health warning: this story is full of WTF moments, as social media would put it. But read on – at your own risk of apoplexy – for some stark light on why the Eastern Cape, that most disaster-prone of provinces, lives full-time in the dwang.
First, meet Freedom Stationery; you’ll soon form some views on how the company has been treated. The other characters: provincial education MEC, the superintendent-general of provincial education and two administrative assistants, whose joint ineptness could cost the province R4-million.
In 2010 Freedom tendered to supply school stationery. A month later the department advertised that it had cancelled the tender. Two bidders, including Freedom, challenged that decision in court, in the process discovering a letter, written by the bid committee to the Super, recommending Freedom as one of the group of bidders who should get the tender.
That case ended with agreement that the process would go back to the point at which the bid committee wrote in support of Freedom. Instead of resolving the dispute, however, a series of tragi-comic events followed with, inevitably, a new raid on the education budget.
For at the end of the case the Super turned his sights on Freedom: how did you get that letter, he demanded. He said the fact that Freedom had the letter amounted to an ‘abuse’, compromising the whole process. He gave the company a deadline to explain, saying if he didn’t received a satisfactory reply he would exclude Freedom from consideration.
The deadline having past the Super awarded the contract to other bidders, excluding Freedom. Asked for reasons he said he excluded their bid as they failed to explain how they had got the original letter.
Now Freedom claims the Super’s failure to consider the company was unreasonable and they are suing for R4-million in loss of profits.
For here’s the strangest thing: Freedom met that crucial deadline. Those letters of explanation WERE sent by Freedom’s lawyers and they WERE received by the department’s fax and computer. Yet the Super and the two departmental administrative assistants say they never arrived.
Based on incontrovertible evidence from the fax machines and computers of both the lawyers and the department, the department had to agree that the letters were sent by the lawyers – and were received by the department. The department had even written to acknowledge receipt of one of the contested lawyers’ letters. But still, in court, the department’s staff continued to claim the letters were not received and that the Super never saw them.
Admin assistant Gcobisa Katikati, for example, could not explain an email from herself, sent to the lawyers, acknowledging their letter. She adamantly ‘remembered’ both that no letter from the lawyers was ever received and that she never wrote any acknowledgment.
Can you imagine the cringe-factor in court as officials steadfastly denied the letters were sent by the lawyers to the department and yet were unable to dispute their own concession that the letters had been both sent and received?
Eventually it boiled down to this argument by the department: maybe the lawyers sent the letters, maybe they were even received, but Freedom had to prove that the Super himself saw them before taking the decision to exclude Freedom from the tender.
Freedom’s lawyers on the other hand said the letters were sent to the fax number stipulated by the department for correspondence. What more could they have done?
Judge Yusuf Ebrahim agreed. He found the administrative assistants’ evidence unsatisfactory and that it would be unjust if Freedom had to account for the department’s failure to follow proper office procedures. Furthermore the Super had failed to testify, thus strengthening Freedom’s case.
In addition, he said, it was wrong of the Super to have fussed over Freedom’s possession of the original letter: there was a perfectly reasonable explanation of whose veracity the Super was already aware and Freedom’s having a copy could never be said to have compromised the process, much less abuse it.
The conclusion was ‘inescapable’ that the Super acted in bad faith when he unreasonably ignored Freedom’s letter of explanation, and his decision was made with the ‘express intention’ of excluding Freedom from the tender.
After Judge Ebrahim held the department liable for the damages Freedom can prove, the case now moves into the second phase: a fight about just how much the Super’s bad faith decision cost the company. Not to mention what the department’s appalling ineptness will cost the province, its children – and their future.