Minister of Education v Chairperson Review Panel and Others (HC-MD-CIV-MOT-REV-2025/00138) [2025] NAHCMD 168 (11 April 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: HC-MD-CIV-MOT-REV-2025/00138

In the matter between:

THE MINISTER OF EDUCATION, ARTS & CULTURE APPLICANT

and

THE CHAIRPERSON OF THE REVIEW PANEL 1^ST RESPONDENT

PLATINUM INVESTEMNT CC 2^ND RESPONDENT

PAMO TRADING ENTERPRISE (PTY) LTD 3^RD RESPONDENT

EYAMBEKO NAMIBIA CATERING SERVICES 4^TH RESPONDENT

OKG FOOD SERVICE (PTY) LTD 5^TH RESPONDENT

STREAM TWO PROPERTIES CC T/A SPAR OMUTHIYA 6^TH RESPONDENT

TSEPO (PTY) LTD 7^TH RESPONDENT

AUGUST 26 HOLDINGS (PTY) LTD 8^TH RESPONDENT

B&H MAINTENANCE SERVICES CC 9^TH RESPONDENT

CLOUDS TRADING ENTERPRISES CC 10^TH RESPONDENT

ELMONDO TRADING CC 11^TH RESPONDENT

ETA INVESTMENT JV ETN TECHNICAL SERVICES CC 12^TH RESPONDENT

INJANGUSHA TRADING CC 13^TH RESPONDENT

JAMES & YOUNG TRADING ENTERPRISES CC 14^TH RESPONDENT

KAYUNYI INVESTMENT CC 15^TH RESPONDENT

NDAKALIMWE INVESTMENT CC 16^TH RESPONDENT

NGHANDIZA INVESTMENT CC 17^TH RESPONDENT

SASH TRADING & EARTHWORKS 18^TH RESPONDENT

SHIMWE TRADING ENTERPRISES CC 19^TH RESPONDENT

SPECIAL SUPERMARKET 20^TH RESPONDENT

ELOOLO FOOD SERVICES (PTY) LTD 21^ST RESPONDENT

FLORIDA TRADING CC 22^ND RESPONDENT

IGLOO INVESTMENT CC 23^RD RESPONDENT

KUNENE CATERING (PTY) LTD 24^TH RESPONDENT

MUKAPA INVESTMENTS CC 25^TH RESPONDENT

NDAFI TRADING AND INVESTMENT CC 26^TH RESPONDENT

OMAUNGU CATERERS CC 27^TH RESPONDENT

T EHAFO STORE CC 28^TH RESPONDENT

TRADEVEST HOLDING GROUP (PTY) LTD 29^TH RESPONDENT

ATLANTIC CATERING SOLUTIONS 30^TH RESPONDENT

FREE NAMIBIA CATERING CC 31^ST RESPONDENT

OM’KWANA CATERERS CC 32^ND RESPONDENT

MAGNETIZE INVESTMENT CC 33^RD RESPONDENT

Neutral Citation: The Minister of Education, Arts & Culture v The Chairperson of the Review Panel (HC-MD-CIV-MOT-REV-2025/00138) [2025] NAHCMD 168 (11 April 2025)

CORAM: HANS-KAUMBI AJ

Heard: 4 APRIL 2025

Delivered: 11 APRIL 2025

Flynote: Review Application – Administrative Law – Urgent applications ­­­­­­­­­­– Applicant must satisfy the requirements of rule 73(4) of the rules of court for the matter to be heard on urgent basis – Interpretation of s 55 of the Public Procurement Act 15 of 2015–The applicant aggrieved by the decision of the 1^st respondent and seeks to review and set aside its decision to cancel the entire bidding process in respect of the supply and delivery of foodstuff to government school hostels – Whether there was non-compliance with the statutory provision in respect of the Notice of Selection.

Summary: The applicant advertised a bid (tender) for the supply and delivery of foodstuff to government school hostels for a period of six months from 1 October 2024 to 31 March 2025, during the period of June 2024. The 2^nd to the 33^rd respondents submitted bids in response to the bidding document. The bids were evaluated and 25 October 2024, the applicant issued a notice of selection of award. The applicant also issued an executive summary. During November 2024, a number of unsuccessful bidders took the matter before the 1^st respondent to review the applicant’s decision, subsequently, a hearing of these applications was held during December 2024. On 10 January 2025, the 1^st respondent issued a decision on the review applications. The 1^st respondent confirmed the applicant’s decision in respect of lots 1 and 8 and ordered the re-evaluation in respect of lots 2-7 and 9. On 4 February 2025 the applicant sought the advice of the 1^st respondent with regard to selection process of the bid and were given the go ahead on the 6^th if February 2025. On 14 February 2025, the applicant made issued a Notice of Selection of Award, which Notice was communicated to the successful bidders on the 17^th of February 2025. On 4 March 2025, the 27^th respondent applied for a review of the applicant’s decision. The 1^st respondent made its decision on the review by the 27^th Respondent on 19 March 2025. Its decision was communicated to the affected bidders on 27 March 2025. On 28 March 2025 the 1^st respondent issued a clarification of its decision of the 19^th March 2025 excluding Lots 1 and 8 from its decision. This urgent application is premised on reviewing and setting aside the 1^st respondent’s decision of the 19^th of March 2025, in which the applicant was ordered to cancel the entire bidding process in respect of the supply and delivery of foodstuff to government schools on the basis that the Notice of Selection issued on 14 February 2025 did not make provision for a standstill period.

Held, that as upper guardian of minor children the court invokes its special jurisdiction to hear this matter on an urgent basis as it affects children as the issue involves the welfare and well-being of minor children.

Held, that the failure by the applicant to insert the standstill period on the Notice of Selection in terms of Regulation 38 of the Public Procurement Regulations does not take away the requirement in terms of Section 55 (4A) Procurement Act that there must be a standstill period.

Held Further, Section 55 (4C) does not nullify the selection process but only awards and contracts made or signed during the standstill period. In casu no contracts were signed during the standstill period hence the decision by the first respondent to start the bidding process afresh is unreasonable and is set aside as section 55 (4C) does not find application.

__________________________________________________________________

ORDER

__________________________________________________________________

1. The applicant’s non-compliance with the forms and services as provided for in the Rules of Court is condoned and the matter is enrolled and heard as one of urgency in terms of rule 73.

2. The decision contained in Paragraph 5.2. of the first respondent's decision of the 19th of March 2025, communicated on the 27^th of March 2025 is set aside.

3. I declare that the contracts were validly signed on the 12^th of March 2025 in terms of the Act.

4. The 14^th respondent shall pay the costs of the applicant and of the 3^rd, 4^th, 6^th, 7^th,30^th,31^st and 32^nd respondents, including the costs of one instructing and one instructed counsel where employed.

________________________________________________________________

RULING

_________________________________________________________________

HANS-KAUMBI AJ:

Introduction

[1] This is an urgent application for the review and setting aside of the 1^st respondent’s decision on the 19^th of March 2025, communicated on the 27^th of March 2025, in which the applicant was ordered to cancel the entire bidding process in respect of the supply and delivery of foodstuff to government schools in the following regions:

1. Omaheke Region,

2. Otjozondjupa Region,

3. Kunene and Erongo Regions,

4. Omusati Region,

5. Ohangwena Region, and

6. Khomas Region.

[2] The application is opposed by the 14^th respondent who filed an answering affidavit herein.

The Parties

[3] The 1^st respondent is the Review Panel constituted in terms of section 58 of the Public Procurement Act, No. 15 of 2015 (herein referred to as 'the Act'). The 1^st respondent has its offices at Moltke Street, Windhoek.

[4] The 2^nd respondent Platinum Investments CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal place of business situated at Erf 2460, Rundu.

[5] The 3^rd respondent is Pamo Trading Enterprises (Pty) Ltd, a private company with limited liability, registered in terms of the company laws of Namibia, with its principal place of business situated at No. 34 Rhode Allee Street, Swakopmund.

[6] The 4^th respondent is Eyambeko Namibia Catering Services (Pty) Ltd, a private company with limited liability registered as such in terms of the company laws of Namibia, with its principal place of business situated at No. 13 Kasteel Street, Luxury Hill, Windhoek.

[7] The 5^th respondent is OKG Food Services (Pty) Ltd, a company with limited liability registered as such in terms of the company laws of Namibia, with its principal place of business situated at No. 4825, Van Der Biji Str, Northern Industrial, Windhoek.

[8] The 6^th respondent is Stream Two Properties CC t/a Spar Omuthiya, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Erf 2902, Okaale Lifestyle Centre, Omuthiya.

[9] The 7^th respondent is Tsepo Catering (Pty) Ltd, a private company with limited liability registered as such in terms of the company laws of Namibia, with its principal place of business situated at Erf 1281 Ferrow Street Keetmanshoop.

[10] The 8^th respondent is August 26 Holdings (Pty) Ltd, a private company with limited liability registered as such in terms of the company laws of Namibia, with its principal place of business situated at No. 11 Bessemer Street, Southern Insdustria, Windhoek.

[11] The 9^th respondent is B&H Maintenance Services CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal place of business situated at No. 9 Faraday Street, Southern Industria, Windhoek.

[12] The 10^th respondent is Clouds Trading Enterprises CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Erf 3706 Aremathea Street, Dorado Park, Windhoek.

[13] The 11^th respondent is El Mondo Trading CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at, No. 7 Gobabis Industrial Area, Gobabis.

[14] The 12^th respondent is ETA JV ETN Technical Services CC, a joint venture whose principal office is situated at Erf 88 John Tjikuua Street, Okakarara and whose nominated service address is Nafimane Halweendo Legal Practitioners, practising at No. 1 de Witt Street, Windhoek North, Windhoek.

[15] The 13^th respondent is Inyangusha Trading CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at . . . Nickel Street, Prosperita, Windhoek.

[16] The 14^th respondent is James & Young Trading Enterprises CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Erf 720 Long Island Road, Rocky Crest, Windhoek.

[17] The 15^th respondent is Kanyunyi Investment (Pty) Ltd, a private company with limited liability registered as such in terms of the company laws of Namibia, with its principal place of business situated at Erf 1054 Bessemer Street, Auas Valley, Windhoek.

[18] The 16^th respondent is Ndakalimwe Investment CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Ongha No. 2, Endola Constituency.

[19] The 17^th respondent Ngandiza Investment CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Brakwater Namibia.

[20] The 18^th respondent is Sash Trading & Earthworks CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Warehouse 2, Omughongo Estate, Oshakati.

[21] The 19^th respondent is Shimwe Trading Enterprises CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Unit D1, EPZ Warehouse, Katima Mulilo.

[22] The 20^th respondent is Special Supermarket CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Erf 258 Dimo Haucrambo Street, Eenhana.

[23] The 21^st respondent is Eloolo Food Services (Pty) Ltd, a private company with limited liability registered as such in terms of the company laws of Namibia, with its principal place of business situated at Erf 1133/1134, Tsandi – Outapi Road, Outapi. The 21^st respondent’s nominated service address is Metcalfe – Beukes Attorneys, practising at No. 13 Liszt Street, Windhoek.

[24] The 22^nd respondent is Florida Trading CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Mandeco Park, Feraday Street, Windhoek.

[25] The 23^rd respondent is Igloo Investment CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Erf 3141 Ondjou Street, Okuryangava, Windhoek.

[26] The 24^th respondent is Kunene Catering (Pty) Ltd a company registered in terms of the laws of the Republic of Namibia, with its offices at Erf 193, Outjo, Republic of Namibia.

[27] The 25^th respondent is Mukapa Investment CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at 76 Tunacor Kuisebmund, Walvis Bay.

[28] The 26^th respondent is Ndafi Trading & Investment CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at 253 Hage Geingob Street, Katima Mulilo.

[29] The 27^th respondent is Omaungu Caterers CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Erf 1331 Oshakati.

[30] The 28^th respondent is T Ehafo Store CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Omafo, Helao Nafidi, Omafo – Oshikango Main Road.

[31] The 29^th respondent is Tradevest Holding Group (Pty) Ltd, a private company with limited liability registered as such in terms of the company laws of Namibia, with its principal place of business situated at 36A Prominadenweg, Eros, Windhoek.

[32] The 30^th respondent is Atlantic Catering Solutions (Pty) Ltd a private company with limited liability registered as such in terms of the company laws of Namibia with its offices at Erf 1170, Kalahari Street, Gobabis.

[33] The 31^st respondent is Free Namibia Catering CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Manheim 10D22, Tsumeb.

[34] The 32^nd respondent is Om’kwana Catering CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at Onethindi – Ondangwa Main Road.

[35] The 33^rd respondent is Magnetize Investment CC, a close corporation registered as such in terms of the close corporation laws of Namibia, with its principal offices situated at No. 7048 Schweitzer Street, Windhoek West, Windhoek.

[36] The 34^th respondent The Minister of Finance cited herein for any interest that she may have in this matter. The 34^th respondent’s address for service of these proceedings is C/O the Government Attorney, 2^nd Floor Sanlam Centre, Windhoek.

Background

[37] During June 2024, the applicant advertised a bid to supply and deliver food stuff to government school hostels for a period of 6 months across a number of regions, from the 1^st of October 2024 to the 31^st of March 2025. The 2^nd to the 33^rd respondents submitted bids in respect of the bid so advertised and on the 25^th of October 2024 the bids were evaluated and a Notice of Selection of award issued.

[38] During November 2024, a number of unsuccessful bidders applied to the first respondent for the review of the applicant’s decision. On the 9^th of December 2024 the hearings were held in respect of the reviews lodged and a decision made in respect of the reviews. On the 10^th of January 2025, the decision in respect of the reviews were communicated to the respondents. The 1^st respondent confirmed the applicant’s decision on respect of LOT 1 and 8 and the bids in respect of Lots 2-7 and 9 had to be re-evaluated.

[39] On the 4^th of February 2025, the applicant sought the advice of the 1^st respondent on whether it could continue with the bidding process which was confirmed by the 1^st respondent on the 6^th of February 2025, and on the 14^th of February 2025 a Notice of Selection of Award was issued.

[40] The 27^th respondent then applied for a review of the applicant’s decision on 4^th of March 2025, citing an illegality on the basis that no standstill period was indicated on the Notice of Selection of Award and that this failure takes away the bidder’s rights to challenge the selection of the award. The 1^st respondent heard the application on the 19^th March 2025 and decided to terminate the entire procurement process and the applicant was directed to start the process afresh. This decision was communicated in writing to the respondents on the 27^th of March 2025 and the review lies against this decision.

Urgency

[41] The applicant contends that it only needs to satisfy the court that the matter is urgent on the facts and that the Court must assume in favor of the applicant that the facts under oath are correct.

[42] The applicant sets out in its affidavit that it will not be able to ensure that children in government school hostels will be fed unless the decision is reviewed and set aside. Thus, it is averred that the urgency is created by the impact of the first respondent’s decision on the supply of food to the children in hostels.

[43] It is further contended that a hearing in due course will not afford substantial redress because even the six months that the applicant will contract for would have lapsed by the time this application is heard.

[44] Counsel for the 6^th and 32^nd respondents, in support of the applicant’s application, averred that the decision stops the provision of food to thousands of children who rely on these contracts for the procurement of food for the said hostels. He further stated that this Court as the upper guardian of minor children’s special jurisdiction should be invoked in this matter.

[45] He further stated that the issue was addressed in EH v D¹ where the Court pointed out that proceedings, in which the rights of children are involved invoke a special jurisdiction in terms of which the Court should exercise its discretion in favor of entertaining an application related to children, in this case tens of thousands of children, on an urgent basis. The Court held that:

‘……… are sui generis and invoke a special jurisdiction bestowed on the court to look after the interests of children… ‘¹. It was for this purpose that the learned Judge considered that ‘a pedantic approach requiring an applicant seeking urgent relief to meticulously explain the reason for every delayed action in coming to court as inappropriate in most cases, unless the circumstances and facts of such delay are palpably so unreasonable and so oppressive that the court would refuse to come to the assistance of such an applicant on an urgent basis.’

[46] The 14^th respondent averred that the applicant did not meet the requirements of Rule 73 (4) which requires that an applicant should explicitly set out the circumstances in which he or she avers the matter urgent and the reasons why he or she claims he could not be afforded substantial redress at a hearing in due course.

[47] 14^th respondent alleged that the applicant was aware of the decision since the 19^th of March 2025, when the decision was made known orally, yet only filed the urgent application on the 1^st of April 2025. Thus, it alleges that applicant’s urgency is self-created and they did not take this court into its confidence by stipulating why it delayed in bringing this matter to court by not explaining the 14-day delay since the decision was made and alternatively it failed to explain its delay of the 5 days since the written decision was availed.

[48] Counsel for the 6^th and 32^nd respondents countered this position by stating that the Court in essence found that a pedantic approach such as that proposed by the 14th Respondent where a meticulous explanation should be provided for every possible delay is not appropriate as the Court will not refuse to come to the assistance of a minor on an urgent basis.

[49] He further submitted that the counting of days approach in relation to delay is not part of the law. He relied on the decision of the Court in Shetu Trading CC v Chair of Tender Board for Namibia and Others² where the Court discarded the proposition that there was some principle in law called the delay rule. The Court held as follows:

‘[9] In this case, as in so many others, counsel for the respondents have diligently determined the first day, which according to them, the applicant could have approached the court on an urgent basis. Then they calculated each and every day, as from the date which they submit, an urgent application could have been lodged. According to these calculations, they then submitted that, indeed, many days have passed and therefore the urgency is self-created. This approach was referred to during argument as the “delay rule”. I must say immediately, there is no such a thing as a “delay rule” in our law as far as urgency is concerned. What Martiz, J: (as he then was) held in Bergmann³, was that the court, in the exercise of its discretion, may refuse to hear the matter on an urgent basis if the applicant delayed in a “mala fides” manner or when there was “culpable remissness or inaction”. In my view, the words “culpable remissness or inaction” cannot be interpreted like a statute. Simple inaction (which appears to have given birth to the so-called delay –rule and the diligent calculation of days) cannot by itself be a basis for exercising a discretion against an applicant. I read what Maritz; J, has said to mean “culpable remissness or culpable inaction”. Any other meaning would unduly limit the exercise of the court’s discretion’.

[50] Based on the facts of this case and the above authorities, I am convinced that the matter is urgent and that as upper guardian of minor children this court accordingly invokes this court’s special jurisdiction to hear this matter on an urgent basis as it affects children, as the issue involves the welfare and well-being of minor children, not just one child but tens of thousands of children who must be fed whilst they reside in the hostels.

Issue

[51] The applicant contends that this Court is called upon to decide one cardinal issue, which is whether or not the 1^st respondent’s decision was fair and reasonable under the circumstances.

Applicant’s submissions

[52] The applicant made the following submissions to support its position that the decision of the first respondent was unreasonable: firstly, the fact that the first respondent was not entitled to hear the 27^th respondent’s application.³ The 1^st respondent had already confirmed the applicant’s decision in respect of lots 1 and 8.⁴ The first respondent was not entitled to revisit its previous decision in respect of lots 1 and 8. The 27^th respondent did not attack the first respondent’s decision in respect of lots 1 and 8. Therefore, it was wrong for the first respondent to even hear the 27^th respondent’s review application as that concerned lot 8. The first respondent failed to consider the fact that the 27^th respondent only had locus standi to attack a decision in respect of lot 8. Instead, the first respondent terminated the procurement process – except for lots 1 and 8.

[53] The applicant contends further that the first respondent terminated the entire procurement process on the basis of a non-compliance with section 55 4C of the Public Procurement Act despite the section merely rendering the contracts invalid that were entered during the standstill period.

6^th and 32^nd Respondents submissions

[54] Counsel for the 6^th and 32^nd Respondent agrees with the applicant in so far as it relates to the fact that there was no real dispute that may be raised related to the fact that the 27^th respondent, whose review application was upheld by the Review Panel was not a bidder at all in respect of the following Lots, 1-7 and 9. Thus he contends the Review panel was wrong to set aside the procurement process in respect of Lots 2-7 and 9 as the 27^th respondent was not a bidder in respect of those lots, as it only bid in respect of Lot 8 and that process was already finalized.

[55] He further contended that it is common cause that the 27^th respondent only lodged a Bid in relation to Lot 8, that the 27^th respondent sought to challenge the selection in respect of Lot 8 by way of a review application to the Review Panel, that on 09 December 2024 the Review Panel dismissed the 27^th respondent’s review application in respect of Lot 8. That the Review Panel confirmed the decision of the applicant in the main application in respect of Lot 8 and upheld the notice of selection of award issued in relation to Lot 8 and which was dated 25 October 2024. The 27^th respondent did not challenge the decision by the Review Panel of 9 December 2024 and therefore the procurement proceedings in relation to Lot 8 came to an end.

[56] Thus, he submits that once the procurement proceedings, in respect of Lot 8, terminated, that was the end of any rights which the Twenty – Seventh Respondent enjoyed in terms of the Public Procurement Act, 15 of 2015 (‘the Act’) to utilize a remedy provided for by the Act (either reconsideration or review). He further submits that only a bidder that bid is entitled to seek the remedies that are provided for by section 55 (4) – 4B of the Act.

[57] Section 55 (4) (b) as read with section 55 (4A) of the Act which provide as follows:

‘(4) An accounting officer or the Chairperson of the Board where the Board is procuring on behalf of a public entity must, in the prescribed manner and form, notify –

1. the successful bidder of the selection of its bid for award; and

(b) the other bidders, specifying the name and address of the successful bidder and the price of the contract, accompanied by the executive summary of the bid evaluation report.

(4A) 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’

[58] He submits that only a bidder who has Bid and whose Bid has been unsuccessful is entitled to seek a reconsideration. Section 55 (4B) of the Act which addresses the bidder that may seek a review before the Review Panel, provision provides as follows:

‘(4B) If the bidder referred to in subsection (4A) does not, in terms of that subsection, receive a response from or is not satisfied with a decision of the Board or public entity the unsuccessful bidder may within the seven days referred to in section 59 apply to the Review Panel for review of the decision or action as contemplated in section 59(1)’.

[59] Thus, he says, it is clear that a review may only be sought by a bidder whose Bid was unsuccessful and who subsequently lodged an unsuccessful reconsideration application. The 27^th respondent not being a bidder in respect of Lots 2 – 7 and Lot 9 could not lodge a review application. The Review Panel could not lawfully adjudicate the 27^th respondent’s review application. It simply had no jurisdiction.

3^rd and 4^th Respondent’s submissions

[60] Counsel for the 3^rd and 4^th respondents started of his submission by stating that the obstinance of the 14^th respondent brought the respondents to court because it was the only respondent that opposed the application, whilst the majority supported the applicant’s application and the first respondent simply threw in the towel. He states that this is the case because the first respondent realized that it erred when it made the decision on the 19^th of March 2025.

[61] He further contends that the 14^th respondent was disqualified during the first process in 2024 and they brought review proceedings in December but were equally ousted because their lease agreement lapsed. Thus, he submits the 14^th respondent was not affected by the subsequent decision taken.

[62] Counsel further submitted that on the 14th of February 2025 the applicant issued a Notice of Selection without stipulating a standstill period. He averred that this omission does not do away with the fact that there is a standstill period provided for in the Act.

[63] Thus he contends that the fact that the first respondent found that some contracts were signed during the standstill period does not affect the validity of the Notice of Selection, that is not a nullity, as the process of selection was not wrong. Thus, he proposed an order to the effect that all contracts signed within the standstill period be set aside but that the Notice of Selection stands. The whole process need not be set aside as the selection process is not a nullity. Section 55 (4)(C) does not state that the selection should not be done but it refers to the fact that the award or contracts should not be signed during the standstill period.

14^th Respondent Submissions

[64] The 14^th respondent contends that the Notice of Selection dated the 14^th of February 2025 was not compliant in terms of the Act. Counsel for the 14^th Respondent stated that Section 55 (4)(A) read with Regulation 38 states that the Notice of Selection must state the name of bidder and date of the standstill period. He submits that the 27^th respondent picked up this irregularity and brought it to the attention of the first respondent and when the first respondent had regard to the Notice of Selection it found that contracts were signed during the standstill period.

[65] He averred that the standstill period was for 7 days from the 17^th of February 2025 when the bidders were advised of the Notice of Selection and the 27^th respondent filed the review application on the 4th of March 2025 he submitted. He then states that all the contracts signed on the 12^th of March, which affects most of the respondents, were invalid because they were signed during the standstill period. The contracts were signed for a 6month period from 1 April to end of September 2025. Thus, he is of the opinion that the whole process must start afresh, as per the decision of the 27^th of March 2025, as this would benefit it because they would not be allowed to part take in the process again.

[66] In reply, Counsel for the 6^th and 32^nd respondents came to the aid of the court in the calculation of days that would be considered as the standstill period using the dates given by the 14^th respondent and on the Counsel’s own proposition, none of the contracts were signed during the standstill period, as the contracts were signed on the 12^th of March 2025, as the standstill period was calculated from the 17^th of February 2025 for 7 days which would be until the 26^th of February 2025. Counsel for the 14^th respondent averred that the review filed by the 27^th respondent was on the 4^th of March 2025 which is outside the standstill period.

Determination

[67] I have taken cognizance of all the issues raised by the parties but I am of the opinion that the issue in respective of the Notice of Selection and the standstill period is determinative of the dispute between the parties.

[68] The question to ask is whether the non-compliance with the statutory provision in respect of the Notice of Selection, not including the standstill period, leads to an invalidity of the whole bidding process?

[69] The Supreme Court in the case of Namibia Protection Services Pty Ltd v PIS security services close corporation & Others ⁵ stated that:

‘Where non-compliance with a statutory provision does not necessarily lead to invalidity such provision is referred to as ‘directory’. It should be pointed out that the word directory in this context does not mean that it is left open for a party to decide whether the provision should or should not be adhered to the non-adherence does not lead to invalidity then the word directory is the legalese to describe the effect.’

[70] The non-compliance in failing to insert the standstill period on the Notice of Selection does not take away the requirement in the Procurement Act that there shall be a standstill period what it does expressly ‘outlaw’ is the awarding or the signing of contracts during the standstill period.

[71] Thus, I cannot see how the omission of the standstill period on the Notice of Selection renders the whole process flawed when the Procurement Act makes provision for a standstill period. Thus, I cannot come to the conclusion that the absence of the standstill period on the Notice of Selection is fatal and as a result renders the whole process null and void. The reliance on the strict compliance with regulation 38 cannot be said to have the effect of setting aside the whole bidding process.

[72] Is there potential prejudice to potential bidders?

[73] There is no evidence placed before this court by any potential bidder that they would be prejudiced should this court find that the failure to insert the standstill period on the Notice of Selection is not fatal and does not render the entire bidding process null and void.

[74] Based on the above, I conclude that none of the contracts were signed during the standstill period if one has regard to the light shed on the calculation of days by counsel for the 6^th and 32^nd respondent, calculated on the version of events of the 14th respondent. The omission of the standstill period on the Notice of Selection is also not fatal as the standstill period is specifically provided for in the Act. The review brought by the 27^th respondent was heard but that led to an unreasonable decision by the first respondent who failed to have regard to fact that Section 55 (4C) does not nullify the bidding process but merely the awards and contracts that may have been signed during the standstill period, which is not the case in this instance.

[75] There is no need to deal with the conditional counter application raised by the 6^th and 32^nd Respondents.

[76] The nature of the procurement contract herein is for the emergency procurement of foodstuff for learners for a period of 6 months. I thus, cannot but agree with the Supreme Court in the case of Free Namibia Caterers CC v the Chairperson of the Tender Board of Namibia ⁶ when it said at Para 54:

‘[54] Following the possible ramifications provided to this court, it becomes clear that the disruption of catering services will be deleterious to the affected schools and learners.

[77] Thus, I make the following order:

1. The applicant’s non-compliance with the forms and services as provided for in the Rules of Court is condoned and the matter is enrolled and heard as one of urgency in terms of Rule 73.

2. The decision contained in Paragraph 5.2. of the first respondent's decision of the 19th of March 2025, communicated on the 27^th of March 2025 is set aside.

3. I declare that the contracts were validly signed on the 12^th of March 2025 in terms of the Act.

4. The 14^th respondent shall pay the costs of the applicant and of the 3^rd, 4^th, 6^th, 7^th,30^th,31^st and 32^nd respondents, including the costs of one instructing and one instructed counsel where employed.

___________________

AN HANS-KAUMBI

Acting Judge

APPEARANCES:

APPLICANT: T Kaurivi

Of TK Kaurivi Legal Practitioners

Windhoek

THIRD AND FOURTH RESPONDENTS: R Heathcote SC, ( with him J Visser)

Instructed by Koep and Partners

Windhoek

SIXTH AND THIRTY SECOND RESPONDENT: T Chibwana, (With him N Alexander)

Instructed by Sisa Namandje and Co

Windhoek

SEVENTH RESPONDENT: G Dick, (With him S Ellis)

Instructed by Shaun Ellis and Partners

Windhoek

FOURTEENTH RESPONDENT: M Mwakondange

Of Mwakondange & Associates Incorporated

Windhoek

THIRTY FIRST RESPONDENT: D Doeseb

Of Fisher, Quarmby & Pfeifer

Windheok

THIRTY EIGHTH RESPONDENT: F Bangamwabo

Of FB Law Chambers

Windhoek