Education department sues AG’s office
Legal action launched to review ‘material irregularity’ decision in respect of feeding scheme tender
IN AN unusual turn of events, the KwaZulu-Natal Department of Education is suing the office of the Auditor-General (AG) in connection with its adverse finding on the failed National School Nutrition Programme (NSNP) tender.
The department is suing the AG after the country’s audit institution found that there were material irregularities in the appointment of a “new service provider for NSNP”.
The department said yesterday that the two arms of the state were still going to discuss the matter and declined to elaborate on the specific nature of the dispute.
The revelations about legal action between the department and the AG’s office stunned members of the standing committee on public accounts (Scopa) during a meeting last week.
When the representative of the AG’s office told Scopa that the department was suing them, the department pointed out that while the matter was in court, it was still open to discussing it, adding that it was not suing the AG in the “true sense of the word”.
Last year, the department changed the specifications of the feeding scheme tender model. It had previously employed multiple service providers to supply meals to schools. But last year a single supplier, Pacina Retail (Pty) Ltd, was appointed for the entire province.
However, the supplier struggled to deliver meals to schools, leaving thousands of pupils hungry. This sparked nationwide outrage and the department cancelled the contract and reverted to its old tender model.
During the Scopa meeting, Sinenhlanhla Sibiya, a senior manager in the AG’s office, revealed that the department was suing the AG.
“I want to give clarity of resolution 94/2023. I see the response that was provided by the department with regard to the disagreement.
“I just want to highlight to the committee that this matter is now currently in court; the Department of Education has actually sued the AG on this matter. It is still material irregularity as reported, but that is where we are in this matter,” she said.
In response, the head of the KwaZuluNatal Department of Education (DoE), Nkosinathi Ngcobo, tried to tone down the seriousness of the situation.
“It’s not suing like in the true sense of suing somebody, we are seeking a review. The matter is under discussion.”
He was however forced to admit that there was a court case filed, although it has not been set down to be heard yet.
A report tabled on Thursday last week by the department in response to the AG’s queries on the NSNP contract said that the matter between Pacina and the department was not fully resolved.
Detailing the resolution of the dispute relating to the amount owed to the service provider after cancellation of the contract, the amount paid by the department and the balance remaining, the report said: “Progress in relation to the finalisation of payments for Pacina Retail (Pty) Ltd is that of the submitted invoices totalling approximately R124 million, the department processed R76 353 722 which was verified and recommended for payment by Provincial Treasury.
“A variance amounting to R48m was disputed for various reasons and could not be processed and further submitted to Treasury for verification.”
On the AG’s query on whether the department received value for money in terms of the contract and whether any amount paid or payable by the department constituted fruitless and wasteful expenditure, the department said: “The disputed proofs of deliveries have since been submitted and are being processed and verified by teams from the department and Treasury. Once completed, a report from Treasury will be submitted to the department.
“In respect of the findings of material irregularity by the AG, the department disagreed with the findings with reasons and the department has applied for a review. The matter is set for hearing in four months’ time,” said the report.
Scopa chairperson Maggie Govender questioned the legal action.
“Let me get this right, the department is now suing the AG.”
Govender added that one department suing another was not a good state of affairs.
DA MPL Imran Keeka said regardless of how the department described the situation, the matter was in court.
“The DA calls for the KZN DoE to be placed under immediate provincial administration. The AG is also on record in the meeting as saying that the DoE was not entirely truthful under oath on the NSNP matter – to Scopa.
“The DoE’s response – that the AG did not report to them in writing regarding their NSNP queries – smacks of the lying and thieving that takes place within this department,” said Keeka.