Mail & Guardian - February 16, 2004

"Aids is not urgent. It will always be there among us," NZ Mtshabe, chairperson of the province's tender board, is recorded as saying in board minutes from 2001 that the Mail & Guardian has seen.

And yet, after years of declining to use material from a publisher that has provided Aids education materials to other provinces, the department took the material without the publisher's permission, and sent it to the government printers to be used as Aids-awareness material in the province.

The disks of the material were delivered to the government printers in March last year, before a High Court interdict obtained by Johannesburg-based publishers Lectio in April prevented the printing of the material. In a later court case, begun in May, in which Lectio challenged tender procedures relating to the Aids materials, it was admitted that the department had taken the material from the publishers.

Lectio approached the High Court in Bisho in May last year to review the refusal of the tender board to grant permission to the Eastern Cape Department of Education to purchase their materials from them.

The hearing began in October, and last week the court ruled in favour of the Department of Education. It said the department's unauthorised taking of the material was not disputed, but the court could not force one party to enter into a contract with another. Judge AJ Hole recommended the process go out to tender to select an appropriate supplier.

In fact, it had gone out to tender on a previous occasion - a 2001 tender was withdrawn by the department because, it said, the advertisements were not clear and because quotes it received were too high. There was no subsequent tender process and there is still almost no Aids-awareness material in Eastern Cape schools. Ironically, what there is is probably material bought from Lectio (during the court case) by a middleman in the Eastern Cape.

The Eastern Cape Department of Education declined to answer questions from the M&G, claiming the case was still sub judice.

Lectio publishers told the M&G: "The Eastern Cape Department of Education and the tender board's inability to make a transparent decision have caused us to lose well-deserved business. And their budget is largely unspent each year."

Mariette Linde, a director of the company, said: "We thought we had a good relationship with the department's special needs unit, though we never received one order till this year. But we remained hopeful till they tried to print our material. That is when we realised we had to take action."

Linde said that for four years the Eastern Cape Department of Education had promised lucrative orders without following through. "I believe they were sincere, but time and again they came up against the tender board, who refused to grant them exemption from the tender process to buy the materials."

The minutes of the procurement committee for 2000, 2001 and 2002 reveal that, despite the pleas of special needs unit officials to be permitted to buy the ready-made material from Lectio, the committee recommended that the contract should be put out to tender.

"But," said Linde, "that did not happen and no purchases of HIV/ Aids educational material were made." Lectio had submitted new, updated material to the department every year. The department ordered no materials - then the material was sent directly to the government printers.

In an affidavit, special needs coordinator Noxolo Gwarube said she "was not aware of the copyright in the applicant's materials prior to the cancellation of the order placed with the government printers".

Linde claims Gwarube cannot plead ignorance because the quotations she received from Lectio made it clear that the material was copyrighted.

Tembani Mtyida, the department's director of special needs in education, said in his affidavit to the court: "Where textbooks or materials can only be obtained from one source, tenders can still be called for, and it is not a given fact that tenders will then not be called for."

The procurement committee made the decision to award the HIV/Aids awareness contract to the government printers in February last year. According to the minutes of its meeting: "The government printer has materials which are used by most provinces and only need to be reproduced when required. No quotations were requested from other companies because of this and the fact that there is an agreement to do printing with the government printer."Lectio will appeal Judge Hole's decision. "We just want the opportunity to do fair business in the Eastern Cape," Linde said. "We still do not know why our materials were not ordered from us."

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