The Umnothowethu Trading Enterprises' (UTE's) bid to stop the Gauteng department of education from awarding the school food nutrition tender to successful bidders has been dealt a legal blow after its case was dismissed.
Acting judge of the Johannesburg high court Sarita Liebenberg said should the interim interdict ensue, it would mean an immediate suspension of the entire school nutrition programme in 10 school districts in Gauteng.
“This matter concerns not only the convenience of corporate entities and branches of the government, incumbent suppliers and disqualified bidders. The matter concerns the estimated 1.7-million learners who are dependent on the national school nutrition programme for at least one nutritious meal on a school day,” Liebenberg said.
“The beneficiaries of the NSNP programme are learners from the most underprivileged parts of society. They are children whose parents cannot and do not pay school fees, youngsters who are dependent on the state to feed them.”
UTE had approached the court after the department of education informed the company that its bid had been disqualified for failure to submit a valid Compensation for Occupational Injuries and Diseases Act (Coida) certificate.
The department had said the company had submitted an expired certificate belonging to another entity and was eliminated from the process.
The matter concerns the estimated 1,7-million learners who are dependent on the national school nutrition programme for at least one nutritious meal on a school day
— Sarita Liebenberg
Dissatisfied with this, UTE took the department to court, interdicting its decision to award the tender for the procurement of storage, supply and delivery of dry and perishable groceries for pupils in primary, secondary and special schools in 10 districts in Gauteng for three years.
The company argued that it submitted a valid certificate; however, according to the court papers, the department said the certificate was issued to different entities and had already expired.
The court papers say UTE had changed tack, suggesting that it was for the first time that it came to its attention through the department's papers that their certificate had been tampered with.
The company had also said it wanted to ascertain how an invalid certificate found its way into its bid submission.
According to the judgment, after affidavits had been exchanged between the parties, UTE delivered a notice to amend its relief which include that they were unlawfully disqualified from participating in the tender and that it met the requirements.
It then asked the department to evaluate its bid submission within three days of the court order.
But the department objected to the amendment, saying the company was “changing the whole case altogether”. It said it was only called upon to deal with an interim interdict.
In her ruling, Liebenberg refused the amendment and dismissed the matter.
She said the court could not allow school pupils to “suffer while corporate entities jostle for tender awards by branches of the government and the potential benefits associated with such tender awards”.
She said, based on the papers before her, she was not satisfied that this was one of the “clearest of cases” to restrain the department in performing its statutory powers and duties.
“Even had UTE established all the requirements for an interim interdict, which it did not, I would have exercised my discretion against the granting of the relief sought.
“I am firmly of the view that at this juncture, the best interest of the learners benefiting from the implementation of the national school nutrition programme trump any prima facie right UTE has to seek a review against administrative decisions taken by the department in respect of the November 2024 tender.”
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