Last week Eastern Cape high court judge Buyiswa Majiki issued an order interdicting the department, the second respondent, from making any payments on the contract, and the two companies from providing any further services.
The Eastern Cape department of education (ECDoE) has been interdicted from continuing with a controversial R500-million contract to supply 55 000 leased tablets to matric learners in the province, pending the hearing of an urgent review application of the entire contract.
The three year lease contract — to the politically connected Sizwe Africa IT Group — made news and was met with outrage earlier this year.
This was after it emerged the department had, using treasury regulations, participated in an existing IT products and services lease contract between the departments of economic development, environmental affairs and tourism (Dedeat) and Sizwe.
The only difference was that it grew from R160-million at Dedeat to R537.4-million at the ECDoE, and had included MTN, who would supply data sim cards that would be topped up with 4 gigabytes of monthly data for 36 months.
Sizwe is a subsidiary of media baron Iqbal Survé’s Sekunjalo and has former ANC chaplain Reverend Vukile Mehana as a director. Mehana was chairperson of the board of the Community Scheme Ombud Service at the time it made an R80-million investment into VBS Mutual Bank.
The application had been brought by the State Information Technology Agency (Sita), which alleged that both contracts were unlawful, and needed to have been done through them in terms of the Sita Act.
Sita is the state’s designated information technology agency and all procurement for state organs — with the exception of state-owned entities — is done through them.
Last week Eastern Cape high court judge Buyiswa Majiki issued an order interdicting the education department, the second respondent, from making any payments on the contract, and the two companies from providing any further services.
This would be while she would hear an urgent application to review and set aside both contracts.
Majiki however rejected part of the application seeking to also interdict first respondent Dedeat’s contract, saying interdicting right now would impact on service delivery because equipment has already been delivered.
“In my view public interest and prospects of success on review tilt in favour of granting of the interdict in the circumstances of the second respondent’s contract. There was no performance at the most critical moment of state of disaster, regardless of the fact that R123-million in favour of the fourth respondent (Sizwe) was approved as early as 7 May 2020,” she added.
At that time the contact was a month old and could have only cost R11-million.
The ECDoE had argued that interdicting the tender would trample on the right to education of minor school children, particularly matriculants whose final year had been severely impacted by the Covid-19 pandemic.
In her summary Majiki noted that it was submitted that the ECDoE had committed itself to both Sizwe IT and network MTN in April before it had satisfied the provincial treasury, who had issued conditional support a month earlier.
The contract was signed in April, but with superintendent general Themba Kojana’s signature dated 27 March, 2020, even though ultimate permission in writing was issued on June 24.
The tablets were delivered between June and September.
Sita, Majiki also summarised, had not supported the deviation from normal procurement process, and wanted the entire process subjected to an open tender process.
“I agree with the applicant, that what is sought to be interdicted is continuation of the contracts and payments connected thereto, without compliance with the Act in instances where public funds are involved. The issues therein revolve around lawfulness of the transactions where there had been statutory non-compliance in the conclusion of the contracts and not the weight of the policy behind the conclusion of the transaction,” she said.
The tender has been heavily criticised by stakeholders in the province, with many saying the state was wasting money by leasing tablets for over R400-million instead of buying them for much cheaper.
The costs of the contract are R404.8-million for the tablets and data, while R133.4-million is for virtual classrooms that will be recorded by teachers from specially made studios where educators would.
About R123-million described as unaccounted for, has already been spent thus far.
Democratic Alliance member of the provincial legislature Yusuf Cassim, who is also the party’s spokesperson for education, laid a complaint for criminal investigation over the tender.
At the time he was quoted as saying: “At the heart of the matter is the awarding of a contract without the matter going out to contract.”
Cassim also said the tablets could have been bought at a fraction of the price.
It has been previously reported that the Special Investigating Unit was probing the contract as part of its investigation into Covid-19 expenditure.