Court rules Eastern Cape school stationery tender process unlawful
· Citizen
The Eastern Cape High Court in Makhanda last week ruled that the province’s department of education unlawfully delegated its constitutional procurement decision-making powers to a private consortium, declaring the arrangement unconstitutional and setting aside the rejection of a school stationery supplier’s bid.
In terms of the ruling handed down by Judge J Potgieter, while government may appoint private companies to assist with procurement, it cannot hand over responsibility for deciding how public funds are spent.
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Court finds procurement powers were unlawfully delegated
The court found the department had unlawfully abdicated its constitutional obligations by allowing the consortium to draft tender specifications, evaluate bids and determine successful suppliers without complying with the public procurement framework.
The case was brought by Power Stationery after it was informed its bid to supply school stationery for the 2026 academic year was unsuccessful because its price exceeded the approved budget.
Rather than challenging the delivery of stationery to schools, the company said the procurement process adopted by the consortium failed to comply with the constitution and legislation governing public procurement.
“This case was never about preventing stationery from reaching pupils, this was not challenged in our case, nor did we seek to overturn the delivery of stationery to schools,” said Power Stationery director Rahul Roopanand.
“Our concern has always been whether the procurement process complied with the constitutional and legislative framework governing public procurement. We welcome the court’s judgment because it reinforces the principles of transparency, accountability and lawful decision-making that underpin public procurement in South Africa,” Roopanand said.
Judge outlines government’s constitutional duties
Potgieter found that procurement of learning materials for public schools amounted to the exercise of a public power because it gave effect to government’s constitutional obligation to provide basic education.
He held the department’s procurement decision-making powers, exercised through its accounting officer, “cannot be lawfully delegated or assigned to a private party”, adding the consortium’s private status did not exempt it from complying with Section 217 of the Constitution and the Public Finance Management Act.
The court found the consortium prepared its own tender specifications, evaluated bids and made award decisions without the department’s involvement.
It also said there was no lawful delegation authorising the consortium to exercise procurement powers on behalf of the department.
Instead, the department had effectively relinquished key procurement functions reserved for government.
Procurement process declared unconstitutional
Potgieter rejected arguments that the consortium had merely been acting as a private commercial supplier, finding it had stepped into government’s shoes by procuring learning materials destined for public schools and was therefore bound by the same constitutional and legislative obligations that govern state procurement.
While the court declared the procurement process unconstitutional and reviewed and set aside the consortium’s decision not to appoint Power Stationery, it refrained from disrupting stationery already delivered to schools.
Potgieter held that learning materials supplied for the 2026 academic year should remain in place to avoid disrupting pupils, while preventing any further rights from flowing from the invalid procurement process.
Judgment reinforces accountability
Roopanand said the judgment carried implications extending well beyond one tender.
“This judgment is about far more than one company or tender. It reinforces that government remains accountable for decisions involving public funds and constitutional obligations cannot simply be delegated elsewhere.”
The court declared the delegation of procurement powers unconstitutional, found the department and consortium had failed to comply with Section 217 of the constitution and the department’s supply chain management obligations, and set aside the decision not to appoint Power Stationery.
It ordered the department and consortium to jointly pay the company’s legal costs.