REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
RULING IN TERMS OF PRACTICE DIRECTION 61
Case Title: PAMO TRADING ENTERPRISES (PTY) LTD APPLICANT and THE CENTRAL PROCUREMENT BOARD OF NAMIBIA 1st RESPONDENT AMON NGAVETENE 2nd RESPONDENT EPAFRAS P SHILONGO 3rd RESPONDENT ONNO-ROBBY A NANGOLO 4th RESPONDENT MARTINS K KAMBULU 5th RESPONDENT HILYA NANDAGO-HERMAN 6th RESPONDENT EFAISHE N NGHIIDIPAA 7th RESPONDENT JULINDA !GARUS-ÔAS 8th RESPONDENT MARY NDESHIHAFELA SHIIMI 9th RESPONDENT LUCIA KAZETJIKURIA 10th RESPONDENT E SHIPONENI 11th RESPONDENT THE MINISTER OF EDUCATION, ARTS AND CULTURE 12th RESPONDENT THE MINISTER OF FINANCE 13th RESPONDENT REVIEW PANEL 14th RESPONDENT SEAL CATERERS (PTY) LTD 15th RESPONDENT | Case No: HC-MD-CIV-MOT-GEN-2023/00492 | |
Division of Court: Main Division | ||
Heard on: 8 December 2023 | ||
Heard before: Honourable Lady Justice Rakow | Delivered on: 30 April 2024 | |
Neutral citation: Pamo Trading Enterprises (Pty) Ltd v The Central Procurement Board of Namibia (HC-MD-CIV-MOT-GEN-2023/00492) [2024] NAHCMD 200 (30 April 2024) | ||
Order: | ||
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Reasons for order: | ||
RAKOW J: Introduction
Background
The order of the Review Panel and the Court order of 14 March 2023
'1. The 1st Respondent’s Notice of Selection award in respect of bid number G/ONB/CPBN-1/2020 for Procurement of Supply of Foodstuffs to Government School Hostels, and/or any decision or action incidental hereto in compliance, are set aside in whole.
The specific instructions are as follows: 2.1. That the 1st Respondent re-evaluate the bids that contained Social Security Commission’s Good Standing Certificates issued in respect of this bid. 2.2 That the 1st Respondent re-evaluate the bids on all other aspects highlighted in this Order i.e. Namibianisation, Storage Facility/Warehouse, et al. 2.3 That the re-evaluation of the bids be done strictly in accordance with the criteria and methodology set out in the Instructions to Bidders to the extent that they are consistent with the provisions of the law. 2.4 That the re-evaluation herein is limited to bidders that have agreed in writing to the extension of the bid validity period in accordance with Section 49(2) and/or 43(3) (if applicable). 2.5. That if the re-evaluation herein takes longer than the remaining portion of the extended bid validity period, the 1st Respondent should seek another extension with bidders.’
‘1. The 1st respondent’s decision purportedly taken on 7 October 2021, set out in the Notice of Bid Cancellation purportedly signed by the 2nd Respondent on 12 October 2021, to cancel the bidding process of Procurement Reference number: G/ONB/CPBN-01/2020 (Procurement of Supply of Foodstuffs to Government School Hostels) is hereby reviewed and set aside.
Relief sought
‘1. The applicant's non-compliance with the forms and service provided for by the rules of court is condoned and the matter is heard as one of urgency.
5.1 The Court should not sentence the first to tenth respondents to a fine or a period of imprisonment or both. 5.2 The Court should not order the first to tenth respondents to be jointly and severally liable for the costs order in paragraph 4 hereof.
Arguments of the parties
12.1. First, it is alleged that the court order could not be implemented (i.e. it is a meaningless order) because the order did not itself extend the bid validity periods all of which had expired by the time that the order was made, and the CPBN cannot revive expired bids; 12.2. Second, it is alleged that the bid evaluation has been completed and so the order has been complied with because, so it is argued, the order does not require the CPBN to act upon the re-evaluation done in terms thereof; 12.3. Third, it is alleged that the application to hold the CPBN and its board members in contempt of the order is premature, because the process of implementation, which includes the final decision to be made on the basis of the outcome of the re-evaluation, has not been completed and, so it is argued, the proper application would have been a mandamus to compel the implementation of the order by a certain (unspecified) future date, all three of which are irreconcilable with one another.
Legal arguments
‘Where an application cannot properly be decided on the affidavits the court may dismiss the application or make any order the court considers suitable or proper with the view to ensuring a just and expeditious decision and in particular, but without affecting the generality of the foregoing, it may (a) direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or her or any other person to be subpoenaed to appear and be examined and cross-examined as a witness.’
‘In the Room Hire3 case the Court stated that one of the clearest ways in which a dispute of fact arises is “(a) when the respondent denies all the material allegations made by the various deponents on the applicant’s behalf, and produces or will produce, positive evidence by deponents or witnesses to the contrary. He may have witnesses who are not presently available or who, though adverse to making an affidavit, would give evidence viva voce if subpoenaed.’
‘In Prinsloo v Shaw (1938 AD 570) it was said that it is not disputed that the general rule of our practice is that, where the material facts are in dispute, a final interdict will not be granted merely on the affidavits. In Mahomed v Melk (1930, T.P.D. 615), which was an application for sequestration, it was held that even where, on the affidavits, there was a balance of probabilities in favour of the creditor’s version, the Court must be satisfied that a viva voce examination and cross-examination will not disturb this balance of probabilities before making an order for sequestration on affidavits.(p 219.)’
‘Naturally, in exercising this discretion the Court should be guided to a large extent by the prospects of viva voce evidence tipping the balance in favour of the applicant. Thus, if on the affidavits the probabilities are evenly balanced, the Court would be more inclined to allow the hearing of oral evidence than if the balance were against the applicant. And the more the scales are depressed against the applicant the less likely the Court would be to exercise the discretion in his favour. Indeed, I think that only in rare cases would the Court order the hearing of oral evidence where the preponderance of probabilities on the affidavits favoured the respondent.’
‘[55] No affidavits were filed by valuers employed by, or officials in the employ of or who had been in the employ of, the respondents who had personal knowledge of what had transpired when the properties were valued and the purchase prices determined. There was no indication that such persons were available to the respondents, or would give evidence in support of the allegations of fraud if subpoenaed. [56] Where a respondent makes averments which, if proved, would constitute a defence to the applicant’s claim, but is unable to produce an affidavit that contains allegations which prima facie establish that defence, the respondent should in my view, subject to what follows, be entitled to invoke Land Claims Court Rule 33(8) or Uniform Rule of Court 6(5)(g). Such a case differs from the situation discussed in Peterson v Cuthbert & Co Ltd and the Room Hire case, alluded to in that part of the Plascon-Evans decision quoted in para [24] above which refers to those two cases. There, the respondent puts in issue the facts relied upon by the applicant for the relief sought by the latter. In the situation presently being considered the respondent may not dispute the facts alleged by the applicant, but do seek an opportunity to prove allegations which would constitute a defence to the applicant’s claim. In the former case the respondent in effect says: given the opportunity, I propose showing that the applicant will not be able to establish the facts which it must establish in order to obtain the relief it seeks; and in the latter the respondent in effect says: given the opportunity, I propose showing that even if the facts alleged by the applicant are true, I can prove a defence.(It is no answer to say that motion proceedings must be decided on the version of the respondent even when the onus of proving that version rests upon the respondent, because ex hypothesi the respondent is unable to produce evidence in affidavit form in support of its version.) It would be essential in the situation postulated for the deponent to the respondent’s answering affidavit to set out the import of the evidence which the respondent proposes to elicit (by way of cross-examination of the applicants’ deponents or other persons he proposes to subpoena) and explain why the evidence is not available. Most importantly, and this requirement deserves particular emphasis, the deponent would have to satisfy the court that there are reasonable grounds for believing that the defence would be established. Such cases will be rare, and a court should be astute to prevent an abuse of its process by an unscrupulous litigant intent only on delay or a litigant intent on a fishing expedition to ascertain whether there might be a defence without there being any credible reason to believe that there is one. But there will be cases where such a course is necessary to prevent an injustice being done to the respondent.’
‘a) First, courts take a “robust common-sense approach” to disputes of fact in motion proceedings.5 This is because, “otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.’6 b) Second, there must be a genuine factual dispute that can only be resolved through the hearing of oral evidence.7The South African Supreme Court of Appeal has held that “[a] real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed.”8. c) Third, courts will not refer a matter to oral evidence unless it will disturb the balance of probabilities arising from the papers in favour of the applicant.9 In the seminal South African case of Kalil v Decotex (Pty) Ltd10 , Corbett JA (as he then was) held as follows: ‘Naturally, in exercising this discretion the court should be guided to a large extent by the prospects of viva voce evidence tipping the balance in favour of the applicant. Thus, if on the affidavits the probabilities are evenly balanced, the Court would be more inclined to allow the hearing of oral evidence than if the balance were against the applicant. And the more the scales are depressed against the applicant the less likely the Court would be to exercise the discretion in his favour’’
‘[38] In certain instances the denial by the respondent of the facts alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of facts. In such instance rule 67(1) may be dispensed with if the court is satisfied that the party who raised the dispute has in his affidavit seriously addressed the fact said to be disputed. [39] Upon careful evaluation of the allegation in the papers, it is apparent that no genuine dispute of fact is raised in respect of the allegation of forgery or fraud in the redistribution agreement. The remainder of the issues said to be denied, do not raise genuine disputes between the parties. I shall revert to this point later in this judgment; save to hold that there is no genuine dispute of facts that could not be resolved on the papers.’ Discussion
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Judge’s signature | Note to the parties: | |
E RAKOW Judge | Not applicable | |
Counsel: | ||
Applicant: | Respondents: | |
J Jacobs (with him J Visser) Instructed by Koep & Partners, Windhoek. | T Phatella (with him E Shifotoka and F Da Silva) Instructed by Office of the Government Attorney, Windhoek. |
1 Moropa and Others v Chemical Industries National Provident Fund and Others 2021 (1) SA 499 (GJ).
2 Executive Properties CC and Another v Oshakati Tower (Pty) Ltd and Another (SA 35 of 2009) [2012] NASC 14 (13 August 2012).
3 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd, 1949 (3)SA 1155 (TPD).
4 Menzies Aviation (Namibia) (Pty) Ltd v Namibia Airports Company Ltd (HC-MD-CIV-MOT-REV-2022/00155) [2024] NAHCMD (28 March 2024.
5 Soffiantini v Mould 1956 (4) SA 150 (E) at 154G-H.
6 Ibid. See too Witvlei Meat (Pty)Ltd v Agricultural Bank of Namibia (A224-2015) NAHMCD (delivered on 7 April 2016), Parker AJ rejected contentions made by the respondent that “this court will be unable to determine the matter on affidavits as the material requisites of the relief sought are materially disputed by the respondent” by deploying the test and principles set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) and earlier Namibian authorities.
7 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634I. See too: Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at para 13.
8 Ibid at para 13 or 375G.
9 Erasmus at D1-75.
10 Kalil v Decotex (Pty) Ltd 1998 (1) SA 943 (A) followed in Namibia in Executive Properties CC and another v Oshakati Tower (Pty) Ltd and Others 2013 (1) NR 157 (SC).
11 Gaya v Rittmann N.O (A 78/2015) [2016] NAHCMD 388 (12 December 2016).
Cited documents 2
Act 1
1. | Public Procurement Act, 2015 | 69 citations |
Judgment 1
1. | Executive Properties CC and Another v Oshakati Tower (Pty) Ltd and Another (SA 35 of 2009) [2012] NASC 14 (13 August 2012) | 2 citations |