REPUBLIK OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: HC-MD-CIV-MOT-REV-2024/00629
In the matter between:
MARLEY TJITJO ARCHITECTS INC APPLICANT
and
THE REVIEW PANEL 1ST RESPONDENT
COMMUNICATIONS REGULATORY AUTHORITY
OF NAMIBIA 2ND RESPONDENT
BARTSCH ARCHITECTION ARCHITECTS 3RD RESPONDENT
TOIVO NUUNGULU ARCHITECTS INC JOINT
VENTURE (JV) BOB MOULD ARCHITECTS 4TH RESPONDENT
MUTUA SCRIBA ARCHITECTS 5TH RESPONDENT
KONDJENI NKANDI ARCHITECTS 6TH RESPONDENT
CHIGAMA ARCHITECTS INCORPORATED 7TH RESPONDENT
CHAMBERLAIN & ASSOCIATES ARCHITECTS 8TH RESPONDENT
GAMAL RIFAI ARCHITECTS 9TH RESPONDENT ANDREW MAIN ARCHITECTS 10TH RESPONDENT
KERRY McNAMARA ARCHITECTS INC 11TH RESPONDENT
JACO WASSERFALL ARCHITECTS JV
DV KLOPPERS ARCHITECTS 12TH RESPONDENT
PIETER MOSTERT ARGITEK JV KERII
& ASSOCIATES INC 13TH RESPONDENT
Neutral citation: Tjitjo Architect Inc v The Review Panel (HC-MD-CIV-MOT-
REV-2024/00629) [2025] NAHCMD 1(14 January 2025)
Coram: NDAUENDAPO ADJP
Heard: 19 December 2024
Delivered: 14 January 2025
Flynote: Civil Procedure – Application – Urgent application – Rule 73(3) and (4) – Whether the applicant complied with ideal prescripts of Rule 73 – Requisites of interim interdict restated.
Summary: Applicant’s urgent application prays to be excused for not complying rules of Court as per rule 73(3) and application be heard on urgency. Whether applicants has satisfied the requirements of interim interdict.
Court acceded to the applicant’s prayers.
______________________________________________________________
ORDER
______________________________________________________________
Condonation is hereby granted to hear this application on an urgent basis.
The second and third respondents are hereby restrained and interdicted from signing the procurement contract, implementing or executing any procurement contract awarded by the second respondent to the third respondent, in respect of tender Number: SC/RPCRAN-06/2024 pending the finalisation of the review application under Part B.
The second respondent is ordered to pay the costs of the applicant, such costs to include the costs of one legal practitioner.
The matter is finalised and removed from the roll.
______________________________________________________________
JUDGMENT
______________________________________________________________
NDAUENDAPO ADJP:
Introduction
[1] Before me is an urgent application in which the applicant seeks the following relief:
Part A
1. Condoning the applicant’s non-compliance with the rules of this honourable Court and hearing this application on an urgent basis as envisaged by rule 73(3) of the High court rules.
2. An order that second respondent and the successful bidder (third respondent) in terms of the notice of the selection for award dated 16 October 2024 be and are hereby restrained and interdicted from signing the procurement contract, implementing or executing any procurement contract awarded by the second respondent, in respect of tender Number: SC/RPCRAN-06/2024 pending the outcome of the review application under Part B.
Only the second respondent opposed the application.
The parties
[2] The APPLICANT is MARLEY TJITJO ARCHITECTS INC a private company duly incorporated as such in terms of the Companies Act 28 of 2004, with its principal place of business situated at No. 4 Bahnhof Street, Windhoek, Namibia.
[3] The FIRST RESPONDENT is the REVIEW PANEL, a juristic person established in terms of provisions of section 58 of the Public Procurement Act 15 of 2015 (“the Act”) with its principal place of business situated at the Ministry of Finance, Moltke Street, 3rd floor, Windhoek, Namibia, C/O the Office of the Government Attorneys, 2nd floor, Sanlam Building, Independence Avenue, Windhoek, Namibia.
[4] The SECOND RESPONDENT is the COMMUNICATIONS REGULATORY AUTHORITY OF NAMIBIA (CRAN), a juristic person established in terms of section 4(1) read with section 4(2) of the Communications Act 8 of 2008, with its principal place of business being 3rd Floor, Freedom Plaza, Courtside Building (3rd and 4th Floor) c/o Fidel Castro & Rev. Michael Scot Street, Windhoek, Namibia.
[5] The THIRD RESPONDENT is BARTSCH ARCHITECTON ARCHITECTS INC. being the successful bidder to which the bid is intended to be awarded subject to review applications which may be filed by any of the unsuccessful bidders, with its address of service being 10 Dr. Kenneth Kaunda Street, Windhoek, Namibia.
[6] The FOURTH RESPONDENT is TOIVO NUUNGULU ARCHITECTS INC JOINT VENTURE (JV) BOB MOULD ARCHITECTS, with its address of service being 11 DELIUS STREET, Windhoek, Namibia.
[7] The FIFTH RESPONDENT is MUTUA SCRIBA ARCHITECHTS, a private company duly incorporated as such in terms of the applicable company laws of the Republic of Namibia, with its address of service being 8 Lilliencron Street, Unit 5, The Village, Windhoek, Namibia.
[8] The SIXTH RESPONDENT is KONDJENI NKANDI ARCHITECTS, a company incorporated and registered under the applicable company laws of Namibia, with its office address at no. 12 Kupferberg Street, Eros Park, Namibia.
[9] The SEVENTH RESPONDENT is CHIGAMA ARCHITECHTS INC, a company incorporated in accordance with the company laws of Namibia, with its office address at No. 9 Curie Street, Windhoek-West, Windhoek, Namibia.
[10] The EIGHTH RESPONDENT is CHAMBERLAIN & ASSOCIATES ARCHITECTS, a company duly registered under the principal company laws of Namibia, with its office address being 3rd Floor, Bridgeview Offices, No. 4 Dr. Kwame Nkrumah Street, Windhoek, Namibia.
[11] The NINTH RESPONDENT is GAMAL RIFAI ARCHITECTS with its address of service being 23 Ganaf Street, Auasblick, Windhoek, Namibia.
[12] The TENTH RESPONDENT is ANDREW MAIN ARCHITECTS, with its address being 9th Floor, Channel Life Building, Post Street Mall, Windhoek, Namibia.
[13] The ELEVENTH RESPONDENT is KERRY McNAMARA ARCHITECTS INC, a company duly incorporated in accordance with the company laws of Namibia, with its address of service at 22 Bell Street, Windhoek, Namibia.
[14] The TWELTH RESPONDENT is JACO WASSERFALL ARCHITECTS JV DV KLOPPERS ARCHITECTS companies duly incorporated and in a joint venture with registered address being No 43 Crohn Schanzen Road, Windhoek, Namibia.
[15] The THIRTEENTH RESPONDENT is PIETER MOSTERT ARGITEK JV KERII & ASSOCIATES INC. companies duly incorporated and in a joint venture registered address at No. 1 Simon Bolivar Street, Klein Windhoek, Namibia.
Background facts
[16] ON 30 July 2024, the second respondent, invited proposal for “Consulting services for Architectural services for Planning ,Engineering Design and Costs Estimates of the Cran Head Office Building in Windhoek.”
[17] The third to the thirteenth respondents submitted proposals. After an evaluation process, the third respondent was awarded the tender.
[18] The Notice of Award and Executive Summary as contemplated by s 55 of the Public Procurement Act 15 of 2015 (the Act) was, according to the second respondent, emailed to all the unsuccessful bidders, including the applicant.
[19] The applicant avers that it did not receive the email with the notice of award and executive summary from the second respondent. By the time it came to its attention that the bid was awarded to the third respondent, the 7 days period within which to bring a reconsideration application as contemplated by s 55 of the Act had lapsed and on that basis its reconsideration application was dismissed.
[20] The applicant then approached the Review Panel, again the application was dismissed on the basis that no reconsideration application was filed timeously. Having unsuccessfully exhausted all internal remedies, the applicant turned to this Court, seeking the relief as set out in the notice of motion. The application is divided in part A and B, this court will only consider part A which deals with the interim interdict.
Applicant’s case
[21] Mr Tjitjo, the MD, of the applicant deposed to the founding affidavit. He avers that the applicant never received the email dated 16 October 2024 from the second respondent with the notice of awards and the executive summary. The applicant only became aware that the tender was awarded to the third respondent on 4 November 2024 when a review application by the sixth respondent was served on it.
[22] On 8 November 2024 the applicant submitted an application to the second respondent for reconsideration. The application was dismissed on the basis that it was not brought within 7 days after it was notified of the award to third respondent.
[23] The applicant then launched a review application with the Review panel and that application was also dismissed on the basis that no reconsideration application was filed timeously with the second respondent.
[24] The applicant now seeks relief in this court as per the notice of motion. In support of its assertion that, it did not receive the email with the notice of award and executive summary dated 16 October 2024, it consulted Mr Nair, an information technology technician to establish what had happened to the email that was allegedly sent by the second respondent.
[25] Mr. Tjitjo further stated that after applicant’s review application was dismissed by the Review panel on 11 November 2024, it waited for the signed ruling of the panel. The signed ruling of the panel was only made available to it on 9 December 2024 and on 13 December 2024 the application was launched.
[26] The applicant submits that it has a prima facie right, if not a clear right. It did not receive the email dated 16 October 2024 and the non-service of the notice of the award denied the applicant the opportunity to exercise its right in terms of s 55(4A) of the Act to file its reconsideration application with the second respondent timeously.
[27] The applicant further avers that service of documents by email is not one of the method prescribed by regulation 57 of the regulations to the Act and even if there was a directive to serve by way of email, it did not exonerate the second respondent from its duty to ensure that there was proper service on applicant.
[28] The applicant avers that it faces irreparable harm as a result of being denied the opportunity to apply for reconsideration. It avers that the exercise of such right had the potential of resulting in the applicant’s bid being re- evaluated and possibly a bid being awarded to it.
[29] The granting of the interim interdict will preclude the second and third respondent signing the contract pending the finalization of the review application.
[30] The applicant will not be afforded substantial redress at a hearing in due course as the signing of the contract will effectively close the door in its face. It will not be able to claim damages because of the legal position that prevails in this jurisdiction.
[31] The applicant further avers that the application is urgent because the award was awarded to third respondent and the interim interdict is to prevent the second and third respondent from signing the contract.
[32] He avers that the balance of convenience favours the granting of the interim interdict to maintain the status quo.
[33] Mr Nair, an Information Technology technician, filed a supporting affidavit. He holds a Diploma in Computer hardware maintenance from the Department of technical Education in India and hold professional qualifications such as Microsoft Certified Systems Administrator, Linux+, CCNA and LPIC-1 certifications. He has more than twenty years of working experience within the Information Technology field.
[34] He investigated and searched the email server of the applicant .He found that the email of 16 October 2024 sent by the second respondent landed into the spam mailbox of the applicant and it was deleted, unopened and unread, seen and marked as spam. An extract of report indicating where the email landed is attached and marked as annexure “A.
[35] He further stated that the “specific email although it is indicated that it was seen, it was really not seen by anyone, but it is indicated as seen for the following reasons. “The technical term for an email flagged as seen in a spam folder is simply "spam-filtered email" - meaning an email that has been identified by a spam filter program as unsolicited or potentially harmful and therefore placed in the spam folder by the email system.
[36] He further averred that the email of 16 October 2024 from the second respondent was never received by any officials of the applicant.”
Second respondent’s case
[37] Ms Nghikembwa, the Executive Officer of the second respondent, deposed to the answering affidavit on behalf of the second respondent.
She raised three points in limine. Firstly, she states that prayer 1 of the notice of motion is a blanket prayer that cannot be granted as it is not clear what condonation the applicant seeks.
[38] Secondly, the application does meet the requirement of rule 73(4)(b) in that it does not state why the applicant cannot be afforded substantial redress at a hearing in due course.
[39] Thirdly, the applicant failed to serve the application on all the unsuccessful bidders.
[40] Ms Nghkembwa further avers that in terms of a Directive issued by the Minister of Finance in September 2020 (EN2), the second respondent was permitted to serve the Notice of Award and Executive summary on the applicant by way of email. The second respondent did email it on 16 October 2024 to an email address provided to it by the applicant. As proof of delivery, she annexed annexure “EN1”.EN 1clearly states that “Delivery to these recipients or group is complete, but no delivery notification was sent by the destination server” .The email address of the applicant appears on EN1.
[41] She avers that the applicant received the email. The fact that the email landed in the spam box of the applicant server, is not the fault of second respondent and the second respondent should not held liable for that.
[42] The applicant’s reconsideration application was dismissed because it failed to launch the application within 7 days from the date the notice of award and executive summary was emailed to it on 16 October 2024.The review panel was justified to dismiss the applicant’s application as there was no reconsideration application launched timeously before the second respondent.
[43] She further avers that the applicant has not met the requisites for an interim interdict. It has not demonstrated a clear right, it has an alternative remedy for damages.
Submissions on behalf of applicant
[44] Mr Ketjijere contended that the reliance on Adaptive judgment to say that prayer 1 in the notice of motion is a blanket prayer and the court is in the dark as to what the applicant must be excused from, is misplaced.
[45] He argued that the Adaptive matter is distinguishable from the present application. In that matter the applicant was asking to be excused because it served the application on some of the respondent by way of email without having obtained leave from the court. In this case, the application was served by the deputy sheriff on the respondents
[46] He further argued that prayer 1 of the amended notice of motion, the applicant made specific reference to Rule 73(3) which provides that:
‘In an urgent application the court may dispense with the forms and service provided in these rules and may dispose of the application at such time and place and in such manner and in accordance with such procedure which must as far as practicable be in terms of these rules or as the court considers fair and appropriate.’
[47] Therefore, it must be accepted that the applicant is seeking condonation with the forms and services as set forth in rule 73(3), and also seeking indulgence from Court to have his or her matter heard on urgent basis as per rule 73(4). He therefore submitted that the judgement of Adaptive Construction is wrong to the extent that it is to be accepted as precedent to be followed in all urgent matters.
[48] On urgency, Mr Ketjijere argued that the applicant stated that: it will not obtain substantial redress at a hearing in due course. I submit that once the contract is entered into and implemented the applicant would not be able to claim damages because of the legal position that exists in public procurement proceedings.
[49] In support of that proposition, he relied on New Era Investment Pty Ltd v Roads Authority and others1 when addressing an urgent application that sought to challenge on an urgent basis a decision to award a tender for construction of a building, it was held as follows:
[13] In my opinion, in a tender to carry out construction works, if the tenderer who did not win the tender and who is aggrieved by the decision of the employer, were to wait for the conclusion of a review application brought in the ordinary course, such aggrieved tenderer would be greatly disadvantaged. He or she would be so disadvantaged in the event of the employer entering into an agreement with the successful tenderer and handing over the site to the successful tenderer who may proceed with the construction works. In such an eventuality it may be difficult to set aside the decision of the employer in due course. If the review application succeeded in the end the aggrieved tenderer may be compensated in damages, but the damages of such nature may be difficult to quantify, thereby protracting the suffering of the aggrieved party who may have to incur huge costs involved in employing a financial consultant in his or her attempt to quantify his or her damages. In any case, a claim for damages does not follow as a matter course. In that event, the harm that the aggrieved party would have suffered would be irreparable if the application is heard in the ordinary course. On that score, I conclude that the aggrieved tenderer could not be afforded substantial redress in due course. I, accordingly, find that the applicant has also satisfied the second requirement of rule 6(12) (b) of the rules. Consequently, I was persuaded to hear the matter as an urgent application. I now proceed to consider the merits of the case, which is judicial review of the decision of the first respondent to award the tender to the fifth respondent, as I have mentioned previously.
[50] Mr Ketjijere also referred to Chico/Octagon Joint Venture v Roads Authority and Others2 where the court also confirms the proposition that damages do not follow as matter of course, and said the following:
57. Fourthly, the probable impact of the default position on the relevant stakeholders concerned needs to be considered. I deliberately refer to stakeholders as in the present matter the impact would be wider than only on the direct parties involved. As already mentioned there are likely to be immediately-affected third parties such as employees and suppliers of third respondent. Further, the public purse is involved and the interest of the general public also needs considering seeing the nature of the project. Thus, the courts in South Africa have been loath to apply the default remedy where tenders (found to have been wrongly awarded) were implemented by innocent, successful bidders at significant public expense.3 It is also clear that additional expenditure will be incurred if, say appellant, and must take over the project. Thus, eg site establishment costs will be duplicated even if only to a certain extent. There will probably be a delay caused by the takeover with its concomitant claims for extra time. Third respondent must have been paid for certain work done and further work has probable been certified. This follows from the nature of the contract and the fact that more than a year has already elapsed since the commencement of the contract. If regard is had to the answering affidavit filed in the review application by the end of August 2016 an amount of just over N$103 million was already due (including N$20 million for site establishment) and it would be reasonable to assume by June 2017 further substantial amounts became due and owing. A setting aside of the award will leave third respondent with an enrichment claim only and will expose it to claims from its suppliers. This through no fault of its own. Employees will have to be retrenched and third parties will obviously likewise face the melancholy prospects of having to seek damages from third respondent and may also have to retrench employees. It needs repeating that most, if not all, of these adverse consequences could have been averted by an interim interdict. Unfortunately, none of the parties in the proceedings made any attempt to establish the additional costs or duplication of costs that will arise from the setting aside of the award and assuming the project would be taken over by another tenderer.
[51] He argued that the applicant will thus not be afforded substantial redress at a hearing in due course in the absence of interim interdict pending part B review, thus this matter must be heard as one of urgency.
[52] On the issue of service on all unsuccessful bidders, Mr Ketjijere, relying on Roads Authority Roads Authority of Namibia v The Chairperson: Public Procurement Review Panel & Others, submitted that service on all the unsuccessful bidders was not necessary as those who did not challenge the decision of the second respondent before the review panel, or if cited by other unsuccessful bidders, did not partake in the proceedings tacitly waived their right to be cited in this proceedings.
[53] Mr Ketjijere submitted that a clear or prima facie right worthy of being protected has been established being a right as provided for by s 55(4A) and 59(1) of the Act to file applications envisaged therein and have those applications heard. He further argued that such rights were denied on the basis that applicant filed his applications out of time, which is denied by the applicant.
[54] Mr Ketjijere submitted that the onus is on the second respondent to proof that the email was sent, but it failed to do that. He also argued that the Directive that the second respondent relies on to state that it was permitted to send the award by email has no force and effect as it was done to minimise the spread of Covid and the measures introduce to combat Covid-19 had been withdrawn.
Submissions on behalf of the second respondent
[55] Mr Nangolo, relying on Adaptive judgment, submitted that prayer 1 of the notice of motion is incompetent as it is not clear from what must the applicant be excused from. In Adaptive Building Land Construction CC JV China State Construction Engineering Corporation (Southern Africa) (Pty) Ltd v Chairperson of the Review Panel4, where exactly the same order was sought, the court per De Jager AJ in refusing to grant such an order held as follow:
[7] Apart from its prayer that the matter be heard on an urgent basis, the applicant seeks condonation for its non-compliance with the High Court Rules, but it does not specify the non-compliance it wants to be excused from. In applications of this nature, a party usually prays that the forms and service provided in the rules be dispensed with. The applicant does not ask for that in its notice of motion.
Mr Nangolo therefore submitted that the application must be struck from the roll.
[56] He further correctly submitted that the court must not consider the amended notice of motion as it was filed without an application and without leave being granted by this court.
[57] Mr. Nangolo argued that the applicant does not state that it will suffer irreparable damage if the application is not heard as one of urgency. The applicant has also not put-up facts as to what harm it will suffer if the application is not granted.
[58] He further submitted that the applicant appears to suggest that, in law damages cannot be claimed in procurement related matters. That is incorrect.
[59] He argued that the applicant seems to suggest that the fact that it made conclusive statement (not facts) that it will suffer irreparable harm when addressing the aspect under interim interdict is sufficient. In PIS judgment the court said: “, the fact that irreparable damages may be suffered is not enough to make out a case of urgency. Although it may be a ground for an interdict, it does not make the application urgent.
[60] He further argued that the matter is not urgent on the basis that the applicant failed to comply with the requirement of rule 73(4)(b) in that it failed to set out why it would not obtain substantial redress at a hearing in due course.
[61] He contended that applicant need to state how it stand to suffer, if it is deprived of the award. There is simply no facts pleaded on urgency, and he submitted that no case has been made out. The applicant is not entitled to the award, and in fact is not the successful bidder or even second.
[62] He further contended that, when one has regard to the review grounds raised, and the orders sought, they have no implications on the continuance of the procurement process itself. The applicant does not even state that even if the award is given to any other bidder, it cannot take over the work if it is successful. There is simply no facts stated.
Resultantly, the requirements of rule 73(4)(b) have not been met and the application should be struck from the roll with costs.
[63] Mr. Nangolo further argued that the Act does not give second respondent powers to condone a late reconsideration application. Once the period that is prescribed in the notice of selection of award has lapsed. That is the end of the matter. Second respondent will be acting ultra vires if it condones the periods, as the act does not allow it to do so. The review Panel will be acting ultra vires its powers if it hears the application for review in the absence of reconsideration application. Not even the court has been given the powers to condone the late filing of the reconsideration.
[64] Mr Nangolo further argued that in terms of the Directive by the Minister of Finance dated September 2020, the second respondent was permitted to serve the notice of award and the executive summary on the applicant by way of email and that was done on 16 October 2024. The fact that the email ended up in the spam box, the second respondent had no control over it.
[65] Mr Nangolo argued that the second respondent served the applicant with the notice of selection of award via email. This form of service is prescribed by the directive that has been made by the authorized Minister. The email communication attached as E to the applicant’s founding affidavit, which was addressed to the applicant by second respondent on the 7th of November 2024 confirmed that the email was sent, and proof of the delivery of email confirmation was provided and attached and marked EN6.
[66] He argued that the applicant’s own technician did not find anything wrong with the emails and there is no proof whatsoever that the email went to spam and not the inbox, as the applicant have failed to provide any evidence that indeed the email “went straight to Spam” and not straight to its inbox.
[67] Therefore, the second respondent complied with the law. If the applicant chose to read the email only after a year and then bring a reconsideration, the second respondent has no power to reconsider the matter. There are other bidders in the process, whose rights too must be protected. Time is of the essence in procurement matter.
[68] He further submitted that the fact that the applicant’s email settings have internal mechanisms to direct emails to SPAM, or to INBOX or wherever cannot be any other person’s responsibility, but the applicants. There is no dispute that the email was sent to the correct address, and that the applicant had received.
[69] Mr Nangolo further argued that the applicant failed to meet the requirements for an interim interdict.
He submitted that the degree required to establish a prima facie rights has been set out in Mugimu v Minister of Finance5 as follow;
[70] The degree of proof to establish prima facie right is well established. It has been summarized by Justice Harms in The Law of South Africa and was cited with approval by Smuts J in the matter of Nakanyala (supra) at par 46. It reads as follows:
'The degree of proof required has been formulated as follows: The right can be prima facie established even if it is open to some doubt. Mere acceptance of the applicant's allegations is insufficient but a weighing up of the probabilities of conflicting versions is not required. The proper approach is to consider the facts as set out by the applicant together with any facts set out by the respondent which the applicant cannot dispute, and to decide whether, with regard to the inherent probabilities and the ultimate onus, the applicant should on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered, and if they throw serious doubt on the applicant's case the latter cannot succeed.’
[70] He contended that on this requirement alone, the applicant must fail. It is clear that the second respondent sent the email and have confirmation that the email was received. How the applicant received it or where is of no consequence. There is no other party that can exercise the jurisdiction to entertain the reconsideration and that is the end of the matter. There is no clear right that can entitle the applicant to any other relief.
[71] Consequently, there is no risk of irreparable harm or risk that the applicant will not obtain substantial redress at a hearing in due course as set out in the Netvend Judgement supra. There is no case for interim relief made out under the circumstances of this case.
Discussion
[72] Is prayer 1 of the notice of motion incompetent?
Prayer 1 is couched as follows:
“1.Condoning the applicant’s non-compliance with the rules of this honourable Court and hearing this application on an urgent basis as envisaged by rule 73(3) of the High court rules.”
Rule 73(3), states that:
‘(3) In an urgent application the court may dispense with the forms and service provided in these rules and may dispose of the application at such time and place and in such manner and in accordance with such procedure which must as far as practicable be in terms of the rules or as the court considers fair and appropriate.’
[73] What is omitted from prayer 1 of applicant’s notice of motion is the phrase “forms and service” that it wants to be excused from and asking the court to hear the matter on an urgent basis as envisaged by rule 73(3).
In Adaptive Building Land Construction CC JV China State Construction Engineering Corporation (Southern Africa) Pty Ltd v Chairperson of the Review Panel,6 the court was faced (an identical) with a similar drafted prayer 1 as in this case. In that case De Jager AJ (as she then was) when dealing with an urgent application held as follows:
[11] The High Court Rules make provision for various forms and service, and if a party wishes to be excused from it in an urgent application, such party must make a case to be excused from it, failing which the court may refuse to dispense with it. Launching an urgent application does not entitle a party to do as it pleases and disregard all forms and services to suit such party’s preference. What a party prays for in an urgent application must ‘as far as practicable be in terms of the rules. The rationale of that requirement is to give effect to the objective of procedural fairness when determining the procedure to be followed in an urgent application. In Bergmann v Commercial Bank of Namibia Ltd and Another7, the court described that requirement as a continuous demand on the court, the parties, and the practitioners to give effect to the objective of procedural fairness. The court agrees with that.
[12] It is procedurally irregular to engage the court and other parties on an urgent basis like the applicant did while seeking condonation for all and sundry under a blanket condonation prayer and to pray for all sorts of condonation where the shoe pinches on the day of the hearing. It has been said before by this court’s labour division in Primedia Outdoor Namibia (Pty) Ltd v Kauluma8, and albeit said in a condonation application context, it is repeated in an urgent application context:
[74] That case is distinguishable from this one. In Adaptive, the applicant sought condonation for having served the application on some of the respondents by way of email without having obtained leave from the court. In this case service was done by the deputy sheriff. So, condonation sought in this case was the time period within which the papers were to be exchanged and the hearing date.
[75] From the notice of motion, the date by when the opposing papers had to be filed and the hearing date are indicated. In addition, the averments by the applicant clearly demonstrated that, condonation sought was in relation to the forms/time period. It was not a blanket prayer, as in Adaptive matter. On that basis, the point in limine raised in relation to prayer 1 is meritless.
[76] The applicant also amended its prayer of the notice of motion to include the phrase “forms and service”. That amendment was done without leave from this court, and reliance on Metropolitan9 judgment was misplaced as there was an application to amend the notice of motion in that matter. Although an amendment may be granted before judgment, such an amendment must be done by way of an application.
[77] The second point in limine raised was that the application is not urgent as the applicant has not met the requirement of rule 73(4)(b) why it could not be afforded substantial redress at a hearing in due course.
[78] The applicant correctly submitted that in cases of procurement where one seeks to prevent interdict, the signing and implementation a contract, it is prudent to approach the court for an interim interdict pending the finalization of a review application. That was the approach adopted by the court in New Era Investment Pty Ltd v Roads Authority and Others10 when dealing with an urgent application that sought to challenge a decision to award a tender for construction of a building. The court said that:
[13] In my opinion, in a tender to carry out construction works, if the tenderer who did not win the tender and who is aggrieved by the decision of the employer, were to wait for the conclusion of a review application brought in the ordinary course, such aggrieved tenderer would be greatly disadvantaged. He or she would be so disadvantaged in the event of the employer entering into an agreement with the successful tenderer and handing over the site to the successful tenderer who may proceed with the construction works. In such an eventuality it may be difficult to set aside the decision of the employer in due course. If the review application succeeded in the end the aggrieved tenderer may be compensated in damages, but the damages of such nature may be difficult to quantify, thereby protracting the suffering of the aggrieved party who may have to incur huge costs involved in employing a financial consultant in his or her attempt to quantify his or her damages. In any case, a claim for damages does not follow as a matter course. In that event, the harm that the aggrieved party would have suffered would be irreparable if the application is heard in the ordinary course. On that score, I conclude that the aggrieved tenderer could not be afforded substantial redress in due course. I, accordingly, find that the applicant has also satisfied the second requirement of rule 6(12) (b) of the rules. Consequently, I was persuaded to hear the matter as an urgent application. I now proceed to consider the merits of the case, which is judicial review of the decision of the first respondent to award the tender to the fifth respondent, as I have mentioned previously.
[79] In Chico/Octagon Joint Venture v Roads Authority and Others11 the Supreme Court confirmed the approach that damages do not follow as matter of course, and said the following:
57. Fourthly, the probable impact of the default position on the relevant stakeholders concerned needs to be considered. I deliberately refer to stakeholders as in the present matter the impact would be wider than only on the direct parties involved. As already mentioned there are likely to be immediately-affected third parties such as employees and suppliers of third respondent. Further, the public purse is involved and the interest of the general public also needs considering seeing the nature of the project. Thus, the courts in South Africa have been loath to apply the default remedy where tenders (found to have been wrongly awarded) were implemented by innocent, successful bidders at significant public expense.12 It is also clear that additional expenditure will be incurred if, say appellant, and must take over the project. Thus, eg site establishment costs will be duplicated even if only to a certain extent. There will probably be a delay caused by the takeover with its concomitant claims for extra time. Third respondent must have been paid for certain work done and further work has probable been certified. This follows from the nature of the contract and the fact that more than a year has already elapsed since the commencement of the contract. If regard is had to the answering affidavit filed in the review application by the end of August 2016 an amount of just over N$103 million was already due (including N$20 million for site establishment) and it would be reasonable to assume by June 2017 further substantial amounts became due and owing. A setting aside of the award will leave third respondent with an enrichment claim only and will expose it to claims from its suppliers. This through no fault of its own. Employees will have to be retrenched and third parties will obviously likewise face the melancholy prospects of having to seek damages from third respondent and may also have to retrench employees. It needs repeating that most, if not all, of these adverse consequences could have been averted by an interim interdict. Unfortunately, none of the parties in the proceedings made any attempt to establish the additional costs or duplication of costs that will arise from the setting aside of the award and assuming the project would be taken over by another tenderer.
[80] Although the tender in this particular matter relates to consulting services, architectural design and costs estimate for the construction of the head office of the second respondent, the same principle/approach applies as in a construction tender. The time and the costs involved in rendering those services are in my view substantial and the adverse consequences may be averted by way of an interim interdict.
I am accordingly of the view that the applicant has met the requirement of rule 73(4)(b)
[81] On the issue of service of the application on all unsuccessful bidders, this Court Roads Authority Roads Authority of Namibia v The Chairperson: Public Procurement Review Panel & Others held that service on all the unsuccessful bidders was not necessary as those who did not challenge the decision of the second respondent before the Review panel, or if cited by other unsuccessful bidders, did not partake in the proceedings tacitly waived their right to be cited in this proceedings.
Has the applicant met the requisites for an interim interdict?
[82] The requirements for an interim interdict are well established in our law.
In Locke v Van Der Merve,13 the Court set out the requirements as follows:
“Briefly the requites are that the application for such temporary relief must show-
That the right which is the subject matter of the main action and which he seeks to protect by means of an interim relief is clear, or if not clear, is prima facie established though open to some doubt;
That, if the right is only prima facie established, there is well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately” succeeds in establishing his right;
That the balance of convenience favours the granting of the interim relief; and
That the applicant has no other satisfactory remedy.”
In De Jager and Another v Katjirua and Another14 expounded on the approach to be followed in relation to the grant of an interim interdict. The said:
“[31] it is further well established that if an applicant manages to establish a clear right, an apprehension of irreparable harm need not be established. Furthermore, the stronger the applicant’s prospects of success on the merits, the lesser the need for such an applicant to establish that balance of convenience favors him or her.
[32] It also now well-established that the proper approach in establishing whether a prima facie right has been proven is to consider the facts set out by the applicant together with the facts set out by the respondent which the applicant cannot dispute and to decide whether, with regard to inherent probabilities and ultimate onus, the applicant should on those facts obtain final relief at the trial.”
[83] The right to have the applicant’s application for reconsideration heard is protected by s 55 of the Act and is a right worthy of protection. In C.K. Heydt Civils Close Corporation v Chairperson of the Central Procurement Board of Namibia A Ngavetene 15 the Court when dealing with an interim interdict stated that:
[33] Both the applicants and Shong Mei JV have demonstrated that they have prima facie right worth protecting as they had a right to have their applications heard before the review panel, which right was denied.
The section reads:
“A bidder referred to in subsection (4) (b) may, within seven days from the date of receipt of the notice referred to in subsection (4), apply to the Board or public entity to reconsider its selection of a bid for award and the Board or public entity must, within seven days from the date of receipt of the application, notify the bidder of its decision.”
[84] The second respondent submitted that the notice of the award and the executive summary was served on the applicant via email dated 16 October 2024. According to the second respondent, the service by way of email was pursuant to a Directive from the Minister of Finance dated 20 September 2020. However, a closer analysis of the Directive, does not state that the documents (notice of award) must from 20 September 2020 be served by way of email and how proof of service must be done as provided for by regulation 57(3) of the Regulations to the Public Procurement Act, 2015.
[85] It appears from the directive that during Covid 19 there was an appreciation from the Minister of finance that service of documents by way of email may reduce the spread of Covid-19, but the Directive fell short of stating that documents may be served by way of email and if so, the method of proof.
[86] The onus is on the second respondent to prove that there was service on the applicant in terms of the Act before the 7 days period as prescribed by s 55 of the Act could be triggered.
[86] The applicant denies that it received the email dated the 16 October 2024 the applicant’s version is also corroborated by the Mr Nair, the IT expert. The onus was on the second respondent to proof that it served the notice of award on the applicant in accordance with the Act and in my respectful view, that onus was not discharged.
[87] In my respectful view, the refusal by the second respondent to hear the applicant’s reconsideration application within the 7 days period, the notice of award came to its attention, was a violation of its right to be heard in contravention of s 55 of the Act and art18 of the Constitution.
[88] The applicant has demonstrated that it has a clear right to be heard and although on the authority of De Jager and Another v Katjiura and Another,16 it
is not necessary to establish an apprehension of irreparable harm, it did show that it harboured apprehension of irreparable harm.
Conclusion
[89] In conclusion, I am satisfied that the applicant has made out a case for urgency and that the applicant has also made a case for interim relief sought.
Order
Condonation is hereby granted to hear this application on an urgent basis.
The second and third respondents are hereby restrained and interdicted from signing the procurement contract, implementing or executing any procurement contract awarded by the Second Respondent to the third respondent, in respect of tender Number: SC/RPCRAN-06/2024 pending the finalisation of the review application under Part B.
The second respondent is ordered to pay the costs of the applicant, such costs to include the costs of one legal practitioner.
The matter is finalised and removed from the roll.
____________
NDAUENDAPO
ADJP JUDGE
APPEARANCES:
APPLICANT: HIMEEKUA RONALD KETJIJERE
BROCKERHOFF & ASSOCIATES LEGAL PRACTITIONERS
2ND RESPONDENT: EINO NANGOLO
E.K. Nangolo Incorporated
1 New Era Investment Pty Ltd v Roads Authority and Others (APPEAL 5 of 2014) [2014] NAHCMD 56 (20 February 2014)
2 81 of 2016 [2017] NASC 34 (21 August 2017).
3 AllPay and Millenium Waste cases.
4 (HC-MD-CIV-MOTREV-2024/00007) [2024] NAHCMD 57 (14 February 2024).
5 (HC-MD-CIV-MOT-REV2017/00128) [2017] NAHCMD 151 (19 May 2017) para 70.
6 Adaptive Building Land Construction CC JV China State Construction Engineering Corporation (Southern Africa) Pty Ltd v Chairperson of the Review Panel (HC-MD-CIV-MOT-REV-2024/00007.
7 Bergmann v Commercial Bank of Namibia Ltd and another 2001 NR 48 (HC) at 50.
8 Primedia Outdoor Namibia (Pty) Ltd v Kauluma 2015 (1) NR 283 (LC) para 47.
9 Metropolitan Bank of Zimbabwe (Pty) Ltd v Bruni HC-MD-CIV-MOT-GEN -2018/00062 [2018] NAHCMD 97 (17 April 2018).
10 New Era Investment Pty Ltd v Roads Authority and Others (APPEAL 5 of 2014) [2014] NAHCMD 56 (20 February 2014).
11 81 of 2016 [2017] NASC 34 (21 August 2017).
12 AllPay and Millenium Waste cases.
13 ( SA 72 of 2012) [2015] NASC 21 (11 September 2015).
14 (HC-MD-CIV-MOT-GEN-2021/00266) [2021] NAHCMD 405 (3 September 2021).
15C.K. Heydt Civils Close Corporation v Chairperson of the Central Procurement Board of Namibia A Ngavetene HC-MD-CIV-MOT-REV-2024/00053.
16 De Jager and Another v Katjirua and Another (HC-MD-CIV-MOT-GEN 266 of 2021) [2021] NAHCMD 405 (3 September 2021).
Cited documents 10
Judgment 7
Act 3
1. | Companies Act, 2004 | 458 citations |
2. | Public Procurement Act, 2015 | 72 citations |
3. | Minerals (Prospecting and Mining) Amendment Act, 2008 | 8 citations |