Procurement Adjudication and the Rights of Children: Freedom Stationery (PTY) Ltd V Mec for Education, Eastern Cape 2011 JOL 26927 (E)

Children are heavily reliant on the services provided by the government and irregularities in public procurement processes are bound to affect the realization of children's rights. In the Freedom Stationery (Pty) Ltd v The Member of the Executive Council for Education, Eastern Cape the Court was urged by the Centre for Child Law acting as an amicus curiae to consider children's right to education and their best interests when deciding on an interim interdict which would result in a delay in the provision of stationery to several schools in the Eastern Cape. This case note contains a summary of the case, some comments on the court's approach to the rights of children in procurement adjudication, and an assessment of the significance of the case for the development of children's rights in South Africa.


Introduction
In the last few years there has been increasing interest in the process of public procurement. The emphasis is often on the flaws of the tender processes, such as corruption and disregard for the rule of law, and there is seldom sufficient attention paid to the consequences of the flawed tenders on the rights of the beneficiaries of procured services. The case of Freedom Stationery (Pty) Ltd v The Member of the Executive Council for Education, Eastern Cape 1 (the "Freedom Stationery" case) is an exception to this largely due to the intervention of the Centre for Child Law as an amicus. Acknowledging that the realisation of the rights of children was affected by the irregular tender process, the court considered the children's education rights when deciding on whether or not to grant the interim interdict in favour of the applicants. The case illustrates how the constitutional rights of children provide the courts with the tools to consider the impact on children's rights and interests of the irregular tender processes regarding services for children. The decision of the court to consider the impact on children of an alleged irregular tender indicates an acceptance by the court that the rights of children may shape the rights (and responsibilities) of those directly involved in the tender process: the state and the bidders respectively.  Meda Couzens. Law (Babes-Bolyai, Romania); MA (Bucharest); LLM (London); MChPr (UKZN). Email: Couzensm@ukzn.ac.za. Senior Lecturer, Faculty of Law, University of KwaZulu-Natal, Durban. The author would like to thank the anonymous reviewers, whose comments helped improve this note. Many thanks to Prof. Ed Couzens for his assistance with editing.

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Case summary In 2010 the Department of Education of the Eastern Cape ("the Department") advertised a tender for the manufacturing and supply of stationery for various schools (Grades R-12) in the Eastern Cape. The two applicants, Freedom Stationery Pty Ltd and Afropulse 46 Pty t/a Power Stationery, submitted applications and were notified by the Department that an official recommendation was made that they, together with other suppliers, be awarded the tender. 2 In January 2011, shortly before the start of the new school year, the Department published a notice in which it cancelled the tender process. Shortly thereafter, and without a new tender process being entered into and followed, the contracts were awarded to the third and fourth respondents (two other companies which had applied for the same tender as the applicants). 3 Freedom Stationery (Pty) Ltd requested reasons for the Department's decision to award the contracts to the third and fourth respondents in the absence of a regular tender process, but no reasons were furnished. 4 The applicants therefore sought review of the decisions. The applicants also sought either fresh adjudication on the tender or the re-advertising of the tender. 5 In addition, the applicants applied for an interim interdict seeking an order prohibiting the Department from concluding any agreements with the third and fourth respondents for performing the tender contracts. 6 It is the interim interdict which forms the subject of the judgment indicated above.
The applicants contended that the Department had not complied with section 10(4) of the Preferential Procurement Policy Framework Act 5 of 2000 and its regulations. application or an order compelling the Department to appoint any of the bidders to deliver stationery to schools in terms of the contract/tender. 17 The interim interdict was granted. 18 In making the decision, the Court had to balance the children's right to education against the applicants' right to just administrative action; and the need to protect those contracting with the government, in order to ensure that the process is 'fair, equitable, transparent, competitive and cost effective', as required by section 217(1) of the Constitution. 19 The Court indicated that in order for the rights of the applicants to be given priority over the right to education in this urgent application, their prospect of success in the review application had to be strong. 20 Reviewing the relevant authorities, the Court decided that the applicants should have been granted the opportunity to advise the Department on their tax-compliance, 21 so as to avoid disqualification from the tender contracts. In addition to being procedurally flawed, the tender process was also substantially unfair. Although the Department claimed that no acceptable tender was received because the applicants had not been tax compliant, the Department subsequently granted the contract, or at least a part thereof, to the third respondent, which was one of the short-listed bidders whose tax affairs were not in order. Further, the Department granted the contract, or at least a part thereof, thereof to the fourth respondent, who was not even amongst those initially short-listed in the tender process. 22 For these reasons, the Court found the tender process to be irrational and unreasonable. 23 The Court then turned to analysing the arguments of the amicus. The position of the amicus was that the children's right of access to education was so important that a speedy delivery of stationery was necessary despite the procedural defects in the process. The amicus requested that the application for an interim interdict be rejected; alternatively, that the Department appoint any of the bidders to provide the 17 [t]o compel performance by the first and second respondent to appoint either of the competing bidders or a third party to perform in terms of the tender, offends one of the most logical and basic principles in our law, namely that courts should not write contracts for the parties before it.
The Court indicated that in order to secure the rights of the learners it was not necessary to disregard the rights of the applicants. The Court admonished the government for creating a situation characterised by the lack of stationery, transport and food in the Eastern Cape schools, and rejected the contention that the litigation which was commenced by the applicants was the cause of the potential violation of children's right to education. 26 The Court indicated that interim plans could be made for the learners to be provided with stationery, such as appealing to charities for support or by searching the government depots for stationery stock. 27 In granting the interdict, the Court stated that it would not be possible fully to protect the rights of all of those involved. Granting the interim order would give satisfaction to the applicants' rights, whilst the learners would need to wait a little longer for their stationery. Setting a very near date for dealing with the review application would, however, ensure that no undue delay in the provision of stationery would occur, and the tender could be granted after being properly organised. 28 The respondents would then be in a position to award the tender contract lawfully.

Comment
The comments which follow are made mainly from a children's rights-oriented perspective, and the importance of the judgment is considered in the light of enhancing the protection of children's rights.
There are a few issues which give this case significance. The case shows that the constitutional rights of children may have an impact on the rights of tender applicants and on the obligations of the state department involved in the irregular tender. The judgment is pioneering in that the intervention of the amicus prompted the court to consider the impact of irregular tender processes on the rights of those who depend on the delivery of services procured by the state. The case reinforces the importance of civil society organisations in promoting and protecting the rights of children through holding the state to account and providing services. These issues are further discussed below.

The right to education
As indicated above, the amicus requested the court to consider children's right to education and their best interests in deciding on whether to grant the interim interdict in favour of the applicants. The Court acknowledged that the realisation of the right to education was dependent on the execution of the contractual obligations arising from the tender contract. The Court had to consider children's right to education and balance it against the constitutional rights of the applicants. In this process, the Court referred to a few factors which have had a negative impact on the realisation of children's right to education in the Eastern Cape. The Court remarked that the school transport and feeding schemes have collapsed and that many schools have no teachers. 30 The Court seems to have endorsed the argument of the amicus that the lack of stationery in the poorest schools in the province would be an obstacle to the realisation of children's right to education. Although the Court did not engage in an extensive analysis of the legal content of the right to basic education, the reasoning of the Court implies that the state has the positive obligations to hire a sufficient 30 Freedom Stationery case para 32.
number of teachers, and to provide food, transport to/from school and stationery, where such support is necessary for children to access education.
Although the Constitutional Court is still to pronounce on the nature and the scope of the right to basic education, 31 this judgment contributes towards crystallising the legal content of the right to basic education provided for in section 29(1)(a) of the Constitution. It is implied in the judgment that the obligations of the state extend beyond providing the physical infrastructure and qualified teachers, to cover the obligation to enable the children to access education facilities by providing them with transport, stationery and the food necessary to sustain learning.
The realisation of the right to education, as a social right, is inevitably dependent on there being available resources. However, unlike the rights to access to adequate housing 32 and the rights to have access to health care, food, water and social security, 33 the right to basic education contains no "internal qualifiers or limitations [which] suggests that the right to basic education in section 29(1)(a) requires direct realisation". 34 The superior protection afforded to the right to education emphasises the importance of education as a tool for achieving optimal personal and social development. 35 In defending its failure to fulfill the right to basic education as a result of a lack of resources, the state will have the difficult task of showing that section 36 of the Constitution (the limitation clause) is complied with. 36 Although the scarcity of state resources may affect the realisation of the right to basic education, it is not an issue raised by the Freedom Stationery case. Rather, the origins of the Department's inability to perform its obligations were of the Department's "own making", 37 arising, in this case, from irregular tender processes. This adds, perhaps, a new dimension to the states' obligations arising from section 29(1)(a)the obligation to engage in good governance practices when administering public resources designed to fulfill the right to education. 31 Liebenberg Socio-Economic Rights 242. See also Davis "Education". 32 Section 26(2) of the Constitution. 33 Section 27(2) of the Constitution. 34 Liebenberg Socio-Economic Rights 244. For the same position, see Davis "Education". 35 Liebenberg Socio-Economic Rights 244. 36 Liebenberg Socio-Economic Rights 244.

The best interests of the child
A further issue in respect of which the case deserves attention relates to the Court's reluctance to use the best interests of the child provision in section 28(2) of the Constitution. Section 28(2) of the Constitution states that "[a] child's best interests are of paramount importance in every matter concerning the child". Section 28(2) of the Constitution plays three functions: it is a tool for the interpretation of section 28 (1) of the Constitution; a tool for establishing the scope of other constitutional rights and their potential limitations; and a self-standing right. 38 The consideration of the best interests of the child has traditionally been applied as a principle in private law matters such as custody, maintenance and adoption. The constitutionalisation of the best interests of the child has, however, extended its application to all areas of law which affect children, 39 including public law matters. This is reflected in the more recent jurisprudence, which shows that the best interests of the child have been  (2) cannot be limited to the rights enumerated in section 28(1) and section 28(2) must be interpreted to extend beyond those provisions. It creates a right that is independent of those specified in section 28(1)". Section 7 of the Children's Act 38 of 2005, titled "the best interests of the child standard", approaches the best interests of the child as a standard and lists a series of factors to be taken into consideration when assessing a child's best interests. See also Skelton "Constitutional Protection of Children's' Rights" 280. 39 Skelton "Constitutional Protection of Children's' Rights 280.  44 Skelton "Constitutional Protection of Children's' Rights" 280.
[d]espite the emphatic words of "paramount importance", it [section 28(2)] does not serve as a trump to automatically override other rights, and as a right in a non-hierarchical system of rights, is itself capable of being limited.
South African jurisprudence reflects the approach that section 28 (2)  Using the limitations clause to attenuate the impact of the requirement to give paramount importance to children's interests in all matters concerning the child can be attributed to courts' view that the consideration of the best interests of the child is not just a principle, but also a self-standing right. Thus, although the approach of the South African courts is slightly different from the international position, which refers to the best interests of the child as a standard or principle, 46 it offers the certainty of a test to be applied when the best interests of the child come into conflict with the rights of others.
It is regrettable that the Court did not consider it necessary to address the application of the best interests of the child in the current case, despite section 28(2) being relied on by the amicus. 47 In an attempt to prevent any further delays in the provision of stationery to schools, the amicus solicited the Court to issue an order enabling the Department to execute the tender contracts, despite of and without rectifying the procedural irregularities in the tender process. No doubt such an order would have been in the best interests of the children, as their needs would have been satisfied immediately and thus placed above all else. Although the Court considered the rights of the children, it decided to limit them temporarily so as to allow the applicants' rights to just administrative action 48 and to a system of state procurement which is fair, equitable, transparent, competitive and cost-effective 49 to prevail in this case. In reaching its conclusion the Court preferred to rely exclusively on the right to education. Had the court given attention to section 28 (2)  Note the use of the singular "child" in s 28(2) of the Constitution. This can be contrasted with the use of plural "children" in art 3(1) of the United Nations Convention on the Rights of the Child (1989) which has been interpreted so as to apply to children generally, or as a class (see Alston 1994 IJLPF 14;Parker 1994 IJLPF 28).
influenced the remedy, if not necessarily the order. The Court was perhaps in a fortunate situation because, as important as stationery might be for accessing education, its absence does not completely deprive children of benefiting from education. The task of the Court would have been much more difficult had the Court been called on to issue a similar interim order pertaining to the acquisition of essential medical equipment or medication.
It might be too pedantic to criticise the Court's lack of attention to the application of the best interests of the child provision in the current case, considering that the judgment pertains only to an application for an urgent interim order. However, had the court considered the role of the best interests of the child in the current dispute, more clarity would have ensued in terms of the scope and the application of the best interests of the child. This case is a first to consider the rights of children in procurement adjudication, and it gave the court the opportunity, which opportunity was not taken, to engage with the role of the best interests of children to receive the services necessary for the fulfillment of their rights when such services, essential as they might be, are procured unlawfully by the state. Children are major consumers of state serviceshealth, education, housing, social assistanceand often the state procures goods which allow it to deliver these services from private entities through tender processes. The irregularity of such processes affects children greatly and using the best interests provision might have given the Court ammunition to be firmer with the Department when granting the interim interdict.
Although this note is critical of the Court for not engaging with the best interests of the child provision, it is not argued here that the Court has acted contrary to the best interests of the child. Although the short-term interests of children were affected by granting the interim interdict, it can be argued that the approach taken by the amicus could have led to unwanted consequences for children's long-term interests and for the respect for the rule of law. It would have created a precedent open to abuse, whereby the rules of procurement could be bent in knowledge of the fact that the courts would be slow to upset the status quo out of concern that their order would interfere with the realisation of the rights of children. The Court indicated that the prioritisation of children's rights has its limits and the Court was not prepared, regardless of the importance of the right to education, to breach the rule of law and the basic legal principles of the South African law. 53 The Court should be commended for the fact that, without resorting to a formal application of section 28(2), its judgment reflects an approach similar to that in S v M (Centre for Child Law as Amicus Curiae) (hereafter "S v M"). 54 In that case the Constitutional Court took cognizance of the fact that the right to family care and the best interests of the child cannot always trump the rights of other members of society to be protected against crime. The Court acknowledged that the sentencing officers will not always be able to protect

The role of non-governmental organisations in the realisation of the rights of children
Another aspect of significance which arose from this case is the importance of civil society organisations in promoting and protecting the rights of children. The contribution of non-governmental organisations reflected in this case is two-fold: holding the government to account and contributing to the delivery of essential [t]he duty to provide care and social services to children removed from the family environment rests upon the State. The government must provide appropriate facilities and meet the children's basic needs. The duty cannot be restricted to pleading, on behalf of children, with private interests to furnish it with resources.
The same can be said to apply in the context of the right to basic education in section 29(1)(a). The state has the main obligation to ensure the fulfillment of the right. The appeal to charities' contribution cannot constitute a long-term strategy, but rather, as suggested by the Court, a contingency intervention designed to respond to emergency situations, or an intervention which supplements the efforts of the state.
A further concern is raised by this case. The indirect beneficiaries of the tender process in this casethe childrenwere fortunate to have a public interest litigation organisation intervene on their behalf, in order to bring to the attention of the Court the impact on the rights of children of an order which would delay the provision of needed goods. Such an intervention is not likely to be the norm in all cases in which a tender process is contested and in which the realisation of the rights in the Bill of Rights depends on the provisions of services procured by the state. It is submitted that the answer is to be found in section 8(1)  should try to reduce the potentially negative impact of their orders, 69 such as was attempted by the Court in this case. 70

Conclusion
This case confirms that the constitutional rights of children have penetrated into public law adjudication. The participants in the procurement adjudication can expect that their rights might be balanced against the constitutional rights of the beneficiaries of the services or goods to which the tenders refer. An essential role in this process has been played by public interest litigation organisations, who in the case under discussion, joining as amicus, brought children's rights and interests into discussion in this case. Arguably the Court should have considered the impact of its order on the constitutional rights of children even independently of an amicus intervention, giving effect to section 8(1) of the Constitution.
The Court contributed to the developing legal content of the right to basic education by acknowledging that the state may have the obligation to provide stationery to children in need in order to facilitate access to education. The judgment clearly indicates that good public governance is a condition for realising the rights in the Bill of Rights.
More clarity would have been welcome on the role of the consideration of the best interests of the child in the present dispute. However, some clarity is provided in that the judgment suggests that despite the importance of the rights of children, these rights will not be given priority at all costs. Respect for the rule of law and the basic legal principles are justifiable limitations on children's rights and interests. In other words, prioritisation of the rights of children cannot be used as a justification for breaking the law or for maintaining a status quo created as a result of breaking the law.

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As indicated above, this would be in compliance with the principle arising from S v M (Centre for Child Law as Amicus Curiae) 2008 3 SA 232 (CC). 70 See part 3.2 above.