_: The President appointed the Presidential Task Team to investigate the non-delivery and/or delays in the delivery of Learner, Teacher Support Material (LTSM) (textbooks and stationery) in Limpopo schools in the 2012 school year.
The task team has provided a report and has made wide-ranging recommendations aimed at both solving the problem at hand and preventing future occurrence.
On 5 December 2011 Cabinet took a decision to invoke Section 100(1)(b) of the Constitution to remedy the service delivery weaknesses in the Limpopo Departments of Education, Health, Public Works, Roads and Transport, as well as the Provincial Treasury. A national Co-ordination Mechanism chaired by the Minister of Finance, including the Ministers of Health, Basic Education, Transport, Public Works, Justice and Constitutional Development, Higher Education and Training, and the Public Service and Administration, was established to oversee and monitor the process of implementation.
The practical effect of Section 100 (1)(b) is that national government assumes the executive obligations of the relevant provincial departments, effectively placing the relevant provincial departments under the administration of national government through the appointment of Administrators.
In the case of the Limpopo Province, Administrators were appointed for the following Provincial Departments: Education, Health, Public Works, Roads and Transport, and Treasury supported by the relevant National Departments, as well as the Department of Public Service and Administration (DPSA) and National Treasury, who are playing a key role in coordinating the intervention to enable the relevant departments to meet their constitutional obligations.
The Presidential Task Team comprised the Deputy Ministers of:
Finance as Chairperson;
Basic Education as member;
Cooperative Governance and Traditional Affairs as member;
Performance, Monitoring and Evaluation as member; and
Public Service and Administration as member
1. What were the causes of the non-delivery and or delays in delivering of LTSM to affected Limpopo schools for 2012 school academic year?
The Task Team found that the problems of late or non-delivery of books affected grades one, two, three and 10 only. This was due to a commencement of a new curriculum.
It did not affect other grades as assumed.
Findings of the Task Team with regards to the reasons for the non-delivery of textbooks include the following;
The Limpopo Department of Education (LDoE) abolished its book unit and did not put in place a risk management plan, to mitigate any challenges that could arise from the decision to outsource the procurement and distribution of LTSM.
The LDoE did not place the LTSM orders timeously and did not manage the contract with the service provider, EduSolutions efficiently.
The department negligently handed over the responsibility to manage and maintain the database for the procurement of materials to the service provider.
The LDoE prioritised the procurement of stationery instead of textbooks.
After LDoE was placed under administration, the late and high turnover of Administrators resulted in instability.
The Director-General of the National Department of Basic Education (DBE) failed to act on a letter he received from the Publishers in December 2011, in which he was reminded that the LTSM had not been procured for the LDoE.
Both the national and provincial departments did not have credible data on learner and teacher numbers in Limpopo, which prevented them from placing the orders.
The financial and legal dispute with the service provider by the two departments resulted in inaction.
2. Were there adequate finances available for the procurement of LTSM for the 2012 academic year, prior to and after national intervention in terms of section 100(1)(b) of the Constitution, and if not, what measures were put in place to secure the finances for the procurement of LTSM for the 2012 school year?
During the intervention there was sufficient funding made available from the Provincial Treasury to the Administrator for the purchase of textbooks.
Despite adequate funding being available, other factors impacted on the timely procurement of LTSM, which include amongst others:
i. Over-expenditure on the compensation budget of LDoE because of the filling of unfunded posts; which amounted to approximately R122.8 million.
ii. A general tendency to disregard and transgress legislation.
iii. A weakness of the Provincial Treasury in responding to financial management issues such as cash-flow requirements, supply chain management and financial oversight.
iv. Lack of recourse, response and action for personnel with fiduciary duties to report corruption or irregularities.
iv. Lack of an ethos that promotes a system of accountability in LDoE.
v. Management incompetence, lack of skills and lack of capacity both in the Provincial Treasury and LDoE.
vi. General lack of monitoring and evaluation of compliance in the Provincial Treasury regarding prudent cash management and monitoring of supply chain practices of departments.
vii. A lack of data, threat of legal action from the service provider and unclear mandates of who should do the procurement.
3. What was the role of provincial and national department in the procurement (ordering and distribution) of LTSM for 2012 school year?
The Task Team found that the LDoE negligently handed over the responsibility to manage and maintain the database for the procurement of LTSM to the service provider and they only acted as a “post office” in that they received and merely forwarded the information to the service provider, EduSolutions, without keeping any record in their system.
The LDoE did not order books for the 2012 school year.
The provincial Treasury did not manage its finances to effectively address the five priorities of government in its failure to manage cash flow and monitor the expenditure of the province.
In rationalising its budget the LDoE failed to prioritise the LTSM programme and at the end of the reprioritisation exercise, the department opted to procure stationery instead of textbooks.
The Office of the Premier failed in its legal and political mandate, to monitor and oversee the planning, budgeting and implementation of programmes of departments.
The Department of Basic Education (DBE), through the provincial oversight unit, did not fully oversee the readiness of departments to deliver on their obligations for the 2012 school year.
When section 100 (1) (b) was instituted the DBE failed to prioritise the ordering of books and concentrated on matters that were not helpful to the process despite advice from National Treasury and appointed administrators.
The administrators appointed by the national department did not get sufficient support and delegations to deliver on the terms of reference of the section 100 (1) (b) intervention. The procurement of textbooks function was not delegated to them.
The DBE left things too late while addressing issues that would not facilitate the speedy placing of orders and misrepresented facts on a non-existent court order barring them from ordering books from alternative suppliers.
4. What was the role of service providers in the acquisition, distribution and delays in the delivery of the LTSM for 2012 school year?
Prior to the intervention, EduSolutions suspended the procurement of the LTSM when LDoE could no longer pay them.
After the intervention, EduSolutions did not procure and distribute LTSM, owing to the dispute with DBE.
As a result of the dispute with DBE, EduSolutions was reluctant to hand over the data to DBE to commence with the procurement of LTSM as well as to place orders with publishers.
5. What were the reasons for the destruction or dumping of the LTSM?
The evidence pertaining to the dumping of textbooks was not presented to the Task Team as the matter is before the Courts and a disciplinary hearing is in process. At least one person allegedly linked to a series of dumping of textbooks incidents has been arrested and charged with several counts and has appeared in court.
6. Were the problems identified through the intervention in terms of Section 100(1)(b) of the Constitution in the LDoE adequately addressed?
With regard to the intervention to address the failures in the Provincial Government, the intervention team has identified the following weaknesses that need to be addressed, inter alia:
Cash and budget management such as overruns and corruption.
Leadership capacity and management deficiencies, for example ineffective oversight, direction, leadership operational instead of strategic and early warning mechanisms.
The capability of the LDoE staff.
The organisational structure was not aligned to budget and service delivery models.
Poor contract management, project management, no statistics on learner and teacher numbers in the LDoE.
The inability of the Provincial Oversight Unit within DBE to effectively monitor and oversee the procurement and delivery of LTSM in LDoE.
Systemic corruption in the LDoE.
7. Will legislation regulating the intervention contemplated in section 100(1)(b) of the Constitution facilitate and promote the delivery of services, especially textbooks?
The Task Team found that the proposed legislation will provide for a more integrated cooperative governance system in which national government monitors and supports provincial government more effectively, and is able to develop a system of early warning signals of significant provincial government failures.
It found that if legislation had already been passed, it would have provided greater clarity on the roles and responsibilities of the different role-players and would have made for a more effective intervention in Limpopo. However, they added, the absence of such a law cannot be used as an excuse for the Limpopo intervention not being effective and the failure to provide schools with textbooks.
“There is sufficient precedent set in previous Section 100 interventions and there are legislative prescripts in other legislation (PFMA, Public Service Act – PSA, etc.) that provide a reasonable framework for interventions. The considerable experiences of Section 139 interventions are also relevant in providing a broad framework or norms. It is the failure to abide by these precedents, legislative prescripts, previous experiences and norms that explain the ineffectiveness of the intervention’, says the Task Team.
8. Are there plans in place by the education department to assist the affected learners to catch-up with the academic programmes in the affected grades?
A catch-up plan for grade 10 has been developed and presented to Parliament, and it is in the process of being implemented. There is however, still a need for buy-in by stakeholders, including teacher unions, school governing bodies, teachers and learners. There is no need for such a plan for grade 1,2 and 3.
9. Are there plans, during the course of the intervention contemplated in section 100 (1) (b) of the Constitution, by the department of education for the procurement of LTSM for 2013 academic year?
The Task Team found that there are plans in place. The Administrator has provided a process map for the procurement and delivery of textbooks and stationery for the 2013 School calendar year.
Specific Recommendations made by the Presidential Task Team are as follows:
The Department of Basic Education must develop a policy for the standardisation of the procurement and distribution of Learner Teacher Support Material. The proposed policy must include mechanisms to strengthen contract and risk management, as well as an operation plan for the procurement and delivery of LTSM.
Given the delays of the delivery of textbooks after the intervention and against the background of the communication by National Treasury Administrator that funds would be found, the Task Team recommended that the Public Service Commission (PSC) should be directed to investigate the role of the Director-General of DBE in contributing to the delay with specific reference to:
His indecisiveness to respond to and act on the letter from the publishers in December 2011 in which he was reminded that the LDoE had not ordered LTSM for the academic year 2012.
The Director-General also did not provide adequate administrative support to the Administrators to ensure the implementation of section 100 (1)(b).
The alleged interference and reluctance to delegate the procurement function to the first two Administrators, therefore further delaying the process to order LTSM for the 2012 academic year.
The PSC shall fully investigate the matter on the basis of the available evidence and further interviews regarding any disciplinary action that may be taken within sixty days. The recommendations by the PSC shall be submitted to the President. The PSC should be further directed to investigate the role of the Head of Department of Education and the Chief Financial Officer of the LDoE with reference to:
1. Failure to fulfill responsibilities of ensuring that LTSM is procured on time and delivered on time for the start of the academic year 2012.
2. The alleged contravention of the supply management principles during the procurement of LTSM through a service provider without conducting a cost benefit analysis and without due regard to the implications on such a decision both administratively and human resource capacity to manage and oversee the implementation of the Service Level Agreement.
3. The ability of the Province to effectively manage the budget and to have credible information that will serve as the basis for costing and procurement of LTSM. The Public Service Commission should further be directed to investigate the role of the Head of Department of the Department of Finance (Treasury) in Limpopo with reference to:
The inability of the Provincial Treasury to monitor and remedy the cash flow problems that led to the financial crisis of the Province that had a bearing on the LDoE´s readiness and capability to order LTSM.
The ability of the Provincial Treasury to effectively manage the budget and to have credible information that will serve as the basis for costing and procurement of LTSM.
Alleged non-compliance with Supply Chain Management and PFMA in awarding the textbook contract to a service provider without a Cost Benefit Analysis.
Support to the Section 100 1 (b) intervention
The Task Team found that given the particular importance of textbooks in the provision of quality education, a pre-eminent priority among the five priorities of government, it is critical that appropriate political oversight in relation to the delivery of textbooks be carefully monitored by government and to ensure that appropriate risk management mechanisms are in place to enhance efficient and timeous delivery of textbooks.
Appropriate steps must be taken to ensure that sufficient Human and Financial capacity is available to support the intervention by developing a mechanism where institutional capacity can be deployed as and when the need arises. The said capacity should be located in the Department of Public Service and Administration (DPSA) and the National Treasury respectively.
The Task Team made the following broad recommendations to remedy the situation going forward;
The Department of Performance Monitoring and Evaluation, with the assistance of DPSA and DBE, should develop and implement a proper monitoring mechanism to monitor the implementation of the catch-up plan for Grade 10, and report to Cabinet on a quarterly basis on the progress of the implementation.
The “Monitoring, Support and Interventions” (MSI) Bill that deals with national government interventions in provincial government in terms of Section 100 of the Constitution and provincial government interventions in municipalities in terms of Section 139 of the Constitution be finalised as soon as possible.
Consideration must be given to making national government intervention in provincial government obligatory, instead of discretionary, where a provincial government fails to fulfil key executive obligations. Such obligatory interventions apply to provincial governments in cases of municipalities failing in their financial obligations – as set out in sections 139 (4) and (5) of the Constitution. These obligatory interventions by provinces in municipalities are based on objective measures of failure set out in the Municipal Finance Management Act (MFMA). A similar set of measures might be considered for national government intervention in provinces. This can be done through provisions in the MSI Bill and/or amendments to the PFMA. It might also be necessary to amend Section 100 of the Constitution to make it more consistent with Section 139.
For the MSI Bill to be effective the PSA and PFMA have to be in synergy with it – and this means that the PSA and PFMA may have to be amended. The Public Service Commission Act (PSCA) may also have to be amended. Draft legislation dealing with a single public service also needs to be taken into account.
A Technical Team comprising representatives of CoGTA, National Treasury and DPSA needs to work on ensuring synergy between the MSI Bill, PSA and PFMA. Representatives of the Justice and Constitutional Development Department and PME in the Presidency need to be actively conferred with.
The MSI Bill should be finalised by 15 November to take through the Cabinet process. By this time the necessary amendments to the PSA, PFMA, and, if necessary, the PSCA, should be identified, and considered for further processing by the DPSA and National Treasury to be introduced into the Cabinet process by January 2013.
In the absence of an enabling legislation for section 100 interventions, National Treasury, the Department of Public Service and Administration and the Department of Cooperative Governance must develop an interim governance framework for Cabinet approval by end of September 2012.
In the finalisation of the current bill on section 100 interventions the experiences from the Eastern Cape and Limpopo interventions should also be taken into account.
To efficiently manage the budget and to have credible information that will serve as the basis for both costing and procurement Learner Teacher Support Material, a headcount for both the learners and teachers in the Province should be conducted and finalised by end of November 2012 by the DBE intervention team.
The Department of Performance Monitoring and Evaluation, within the Presidency, must ensure that systems in various departments are coordinated and integrated to enable development of a standard set of measurements and deliverables to enhance the early warning capabilities in all three spheres of government.
Decision of the President
The President views the failure to provide textbooks to Grades 1, 2,3 and 10 in Limpopo in a very serious light and wants to ensure that there is no recurrence of the problem.
The President has accepted the report. In further processing it, he has asked the Minister of Basic Education to supply information on what has been done thus far, with regard to the following matters:
The effective procurement, delivery and supply of Learner Teacher Support Material (LTSM) to the affected schools.
The proper implementation and monitoring of the catch up plan in respect of grade 10 learners in the affected schools.
The Minister has been requested to furnish the said report on action taken within 21 days from the 21st of September 2012. Based on the report, the President has asked the Minister to request the Public Service Commission to investigate the conduct of the Director-General of the Department of Basic Education with regard to the following:
His alleged indecisive response to correspondence received from the publishers in December 2011 regarding the procurement of LTSM for the 2012 academic year;
His failure to provide the necessary support for the Section 100 (1)(b) intervention and specifically his interaction with the Administrators appointed in terms of such intervention.
The President has assigned the Ministers in the Presidency, Mr Collins Chabane and Mr Trevor Manuel to assist the Minister of Basic Education in fulfilling the tasks and ensuring the implementation of the recommendations of the Presidential Task Team.