Court name
High Court Main Division
Case name
Independence Catering (Pty) Ltd and Others v Minister of Defence and Others
Media neutral citation
[2013] NAHCMD 347
Cheda J




no: A 337/2013


the matter between:



LTD                                                                                  2ND


LTD                                            4TH

LTD                                                                        5TH

CC                                                       6TH









Catering (Pty) Ltd v The Minister of Defence
337/2013) [2013] NAHCMD 347 (19 November 2013)



7 October 2013

19 November 2013



A party
who has an interest in a matter due for adjudication is entitled to
know the outcome of such adjudication – Where he acquires
knowledge that his interest in the said adjudication is threatened
and has failed to obtain information regarding the truth or otherwise
of the goings-on in the matter is entitled to approach the court on
an urgent basis for redress. – a party who has a substantial
interest with a matter is entitled to be joined in the proceedings –
Where a matter is awaiting finalization, it will be premature for the
court to make a decision that will affect its outcome, as this will
pre-empt the adjudicators’ decision (in
the Tender Board) – A cabinet Minister is by virtue of his
position empowered to make policy decisions in furtherance of the
national interest as long as such decisions do not offend other
people constitutional rights – Legitimate expectation arises
when such expectation has been induced by the decision maker, it must
have been clear, competent and lawful.


Applicants were contracted to supply food rations to Ministry of
Defence up to 30 September 2013. After their mandate of the contract,
first respondent extended their mandate to 30 September 2013 without
going through the tender process. After the expiry of the extension,
they were informed by someone that first respondent had already
contracted the fourth respondent to supply food rations to the first
respondent through the fifth respondent. This they challenged on an
urgent application. Their argument was that they had a legitimate
expectation to be awarded tenders by third respondent. They sought an
interdict to prevent first respondent from proceeding with the said
contract with the fourth and fifth respondent. In addition that third
respondent must determine the tenders.




The application is
dismissed with costs and such costs include two legal practitioners.




On the 29th of September 2013, applicants filed an urgent application
whose notice of motion is couched in the following terms:


Condoning the non-compliance by the applicants with the Rules of this
Honourable Court relating to service and time periods and enrolling
the application for hearing as one of urgency as envisaged in Rule
6(12) of the Rules of Court.


Issuing a rule nisi returnable on a date to be arranged with the
Registrar of this Honourable Court calling upon any of the
Respondents to show cause why the following orders should not be


Reviewing and setting aside the decision of the First Respondent to
conclude an agreement with the Third and/or Fourth Respondent for the
supply of Rations to the Ministry of Defence


Insofar as it may have decided to withdraw the tender, reviewing and
setting aside the decision of the Third Respondent not to consider or
make an award in respect of Tender No A5-1/2012 for the supply and
delivery of Rations to the Ministry of Defence.


ordering the Third Respondent to consider and make an award in
respect of Tender No A5-1/2012 for the supply and delivery of rations
from 1 November 2012 to 31 October 2017.


Declaring the agreement concluded between the First and Fourth
Respondents during July 2013 for the supply of Rations and Logistics
to the Ministry of Defence to be null and void, alternatively of no
force and effect, alternatively


Suspending the executive and implementation of the agreement
concluded between the First and Fourth Respondents during July 2013
for the supply of Rations and Logistics to the Ministry of Defence,
pending the final determination of this application;


Declaring the “professional Services level Agreement”
concluded between the Fourth and Fifth Respondents during July 2013
to be null and void, alternatively of no force and effect;


Suspending the execution and implementation of the “Professional
Service level Agreement” concluded between the Fourth and Fifth
Respondents during July 2013, pending the final determination of this


Interdicting the First, Fourth and Fifth Respondents from
implementing or executing the agreements referred to in paragraphs
2.4 to 2.7 above pending the final determination of this application.


Directing that the costs of this application be paid by the First and
Third Respondents, and should any other Respondent oppose the relief
sought, by those Respondents, jointly and severally with the First
and Third Respondents, such costs to include the costs of one
instructing and two instructed counsel.


Ordering the relief sought in paragraphs 2.5, 2.7 and 2.8 operate as
an interim interdict with immediate effect, or with effect from a
date to be determined by this Honourable Court, regard being had to
the balance of convenience or any other consideration that this
Honourable Court deems relevant in the circumstances.


An Order authorizing the Applicant within 10 days after the Registrar
has made the record of the tender process available to it, to add to
or amend the terms of the notice of motion and supplement its
founding affidavit.


The brief background of this matter is that applicants are among
companies that have been supplying food and services to the Ministry
of Defence which falls under first defendent. During the month of
July 2012 the Ministry of Defence advertised a tender under reference
A5-1/2012 [hereinafter referred to as “the Tender”] for
the supply and delivery of various foods from 1 November 2012 to 31
October 2017. Tenderers were supposed to submit tenders to the Tender
Board (third respondent) by the 14 August 2012. These were indeed
duly submitted. The above background was furnished to the court by
one Aaron Mushimba [Hereinafter referred to as “Mr Mushimba”]
who is the representative of the first applicant.


It was his assertion that the existing suppliers of goods and
services to the first respondent was extended from 1 July 2013 to the
30th of September 2013 by first respondent. He further
stated that to his knowledge, as of the 21st June 2013,
the Tender Board had not yet made a decision regarding the tenderers.
Subsequent to this, he had learnt that an agreement between first
respondent and fourth respondent had been entered into for the supply
of food rations. A further agreement was then entered into between
fourth and fifth respondent in order to enable the effective
facilitation of the supply of rations to first respondent. It was his
further argument that:


The said
agreements are in conflict with various regulative provisions which
are currently in operation and are in breach of an agreement between
applicants and the Tender Board  (third respondent) or the
Ministry of Defence (first respondent); and

decisions arrived thereat are reviewable for failing to comply with
legislative directives in administrative law.



It is for that reason that an interdict is sought to:


third, fourth and fifth respondents from executing an agreement they
allegedly entered into;

the third respondent to consider the tender’s submitted in
response to the advertisements flighted by third respondent;

the removal and setting aside of the decision of first respondent to
conclude the agreements with fourth and fifth respondents in relation
to the supply of food to first respondent;

that in the event that the third respondent has decided to tender and
sanction the aforementioned contract, the said decision should be
reviewed and set aside; and that


pending consideration of the tender by the third respondent or
finalization of this application.


The first applicant’s representative, Mr Mushimba who is a
shareholder and Director of first applicant, in his affidavit
extensively laid the background and facts of this matter as he
understood them. This background is largely common cause and the
court is indeed grateful for this information.


Relief is sought from all the five respondents, except the second
respondent who is cited by virtue of his potential interest in the
proceedings. It is Mr Mushimba’s evidence that a number of
suppliers supply food and services to the Ministry of Defence, which
falls under first respondent. It is not in dispute that in July 2012
the first respondent advertised for a tender under reference
A5-1/2012 [hereinafter referred to as “the tender”] for
the supply and delivery of rations from 1 November 2012 to 31 October
2017. Tenderers were, therefore, invited to submit tenders to the
tender board by 14 August 2012 and applicants did so. As of the 21
June 2013 the Tender Board had not made a decision regarding the
tenders. The existing suppliers’ tenders were, therefore,
extended from 1 July 2013 to 30 September 2013. During the course of
the month of September, he obtained information to the effect that
first respondent had concluded a contract for the supply of goods and
services with fourth and fifth respondents. As a result of this
information, applicant mounted this application bearing in mind that
their existing contract with first respondent was coming to an end on
the 30th of September 2013.


Mr Marais assisted by Ms Schimming-chase for the applicants in his
submissions as captured in his heads of arguments vigorously argued
this application in the manner hereinunder dealt with:


The requirements for
urgency as provided for in Rule 6 (12) (b) namely that in order to
qualify for indulgence applicant must explicitly set out the
circumstances that renders the matter urgent and set out reasons why
it cannot be afforded substantial redress at a hearing in due course.


According to him, the urgency of the matter is mainly grounded on the
fact that following newspaper rumours that first respondent had
contracted with fourth and fifth respondents. Despite his efforts to
elicit a comment from third respondent, he could not obtain any
meaningful response from the third respondent and there was totally
no response from first respondent. This was during the month of July
2013. On the 10th September 2013, his legal practitioners
wrote to third respondent who responded to the effect that the
enquiry was due for consideration on 13 September 2013. On the 16th
September 2013 one of applicant’s members, one Johan Andre
Penderis [hereinafter referred to as “Penderis”] received
information that there may have been agreements entered into between
first respondent on one hand and fourth and fifth respondents on the
other. This development indeed added to applicants’ concern:


Penderis’ informant was, however, unwilling to depose to an
affidavit. It is for that reason that this application was mounted as
urgent. It is essential in my view to deal with the issue of urgency
first as this determination will either halt or allow these
proceedings to proceed.


Mr Namandje for the first respondent argued that the court should
make a finding that there was no urgency on this matter. It is his
argument that while the court has discretional powers to hear a
matter on an urgent basis, there are certain requirements which
applicant must fulfill, namely:


That applicant must
explicitly set out that he/she would suffer irreparable harm and
he/she would not obtain a substantial redress in due course if the
application is not heard on an urgent basis, see
and another v Smith
and Bergman
v Commercial Bank Namibia & another
They further argued that it was not proper for first applicant to
speak for and on behalf of other respondents when they did not file
their own founding affidavits.


He went further and argued that applicant’s counter-claim that
applicants would suffer irreparable harm as third respondent would
have awarded the tender to any other person other than themselves
should be ignored as there is no guarantee that the tender would be
awarded to them.


The issue of urgency in my opinion cannot be plucked from the air,
but, must be considered in relation to each particular case.
Applicants had been supplying food rations to first respondent and
they had their contracts extended to 30 September 2013 pending the
outcome of the decision of third respondent. Whether or not they
would have been considered favourably is neither here nor there. The
important issue is that they expected some kind of response. While
waiting for the said response, information started filtering through
to the effect that first respondent was already considering a
contract which involves both fourth and fifth respondents. At that
juncture they started panicking.


In my opinion the panic was reasonable. In the circumstances they
therefore had reasons to take reasonable and legal steps to secure
their perceived rights in this tender issue. Therefore, it cannot be
said that the urgency that prevailed in this scenario was
self-created. The time for reckoning was nigh and it would have been
folly, therefore, for them to have waited another day without seeking
to prevent the imminent threat.


I therefore find that this matter had all the necessary ingredients
for urgency as envisaged by the rules of this court.


Applicants further argued that indeed rule 16 (5) provides that the
court may on an application, order to be struck out any matter which
is scandalous, or irrelevant, it may however not grant the
application if it is prejudicial to the other party’s case, see
Vaartz v Law Society
of Namibia
The underlining point is that in as much as the court has discretion
to strike out, it will not do so to the prejudice of the other party.
This in fact is the correct legal position of our law.


Applicants are of the strong view that first and third respondent
have a duty to account to them. Their reasons are grounded on their
belief that there exists a tacit agreement between themselves and the
Ministry of Defence in that:


respondent decided to a flight tender to which they responded to;

The said
tenders are due for considerations by third respondent;

incurred costs in preparing and submitting the said tenders;

applicants complied with the tender requirements; and, that

The tenders
are due to be considered by third respondent, thereafter, would be
awarded resulting in contracts been entered into with first and
fourth respondents.


the above reason they sought an interim relief as they argue that
they have established a

case against respondents. In supporting this agreement they referred
the court to the matter of
v Inspector General of Namibia & others
where the court stated:


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 sufficient but the weighing up of
probabilities of conflicting versions is not required. The proper
approach is to consider the facts 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 fact set out in
contradiction by the respondent should then be considered and if they
show serious doubt on the applicant’s case, the latter cannot


It is clear therefore in light of the authorities that the court is
constrained to weigh the facts presented by both parties, in order to
determine which party is supported by the current legal position.


Mr Namandje urgued that applicants should have cited the Chief of the
Defence Force as he is the implementor of all contracts of the first

Marais for applicant further argued that the attack by respondents of
the non-joinder of the Chief of the Defence Force was without merit
as they have already cited the Minister of Defence who is both a
political head and a government representative. It is their view that
citation of the Ministry of Defence is therefore sufficient in the


Mr Marais also argued that the functions of members of cabinet are
regulated and governed by article 40 of the Namibian constitution,
which reads inter alia:


The members of the cabinet
shall have the following functions:


to direct, co-ordinate and supervise the activities of Ministries and
Government departments including para-statal enterprises, and to
review and advise the president and the National Assembly on the
desirability and wisdom of any prevailing subordinate legislation,
regulations or orders pertaining to such para-statal enterprises,
regard being had to the public interest.;










to take such
steps as are authorized by law to establish such economic
organisations, institutions and para-statal enterprises on behalf of
the State as are directed or authorized by law;



It was further applicant’s argument that the Ministry of
Defence and the Chief of the Defence Forces were not given a carte
as it were, to conclude agreements outside the provisions
of the law as they have done in this instance. In as much as a
statutory body, a local authority or regional council is exempted
from granting authority under the State owned Enterprises
(Government) Act, 2006, fifth respondent does not qualify. Applicants
however, agree that fourth respondent may qualify in terms of section
17(b) (i) of the Tender Board Act, Act 1996 (the Act).


They further contended that the third respondent is yet to consider
the tenders and to make a decision, in fact in paragraph 61 of his
founding affidavit Mr Mushimba stated:


Since the Tender Board
therefore still intends to consider the tender and to make a
decision, in view of the fact that it had not given notice of
withdrawal and because the tenderers are still awaiting the decision
of the Tender Board, we submit that, by their conduct, the tenderers
(on one side) and the Tender Board (on the other) have, in effect,
extended the acceptance period


Mr Namandje has argued that applicants should have joined the Chief
of the Defence Forces and stated that the Ministry of Defence is in a
separate position and/or administrative function as set out by the
Minister of Defence himself, Honourable Mr Nahas Angula, in his
answering affidavit in which he stated that his powers are derived
from Article 40 of the constitution (supra).


The question which falls for determination in the main is whether or
not there has been a non-joinder of the Chief of Defence. Rule 10 (1)
of the Rules of the Court provides:


Any number of persons, each of whom has a claim, whether jointly,
jointly and severally, separately or in the alternative, may join as
plaintiffs in one action against the same defendant or defendants
against whom any one or more of such persons proposing to join as
plaintiffs would, if he or she brought a separate action, be entitled
to bring such action, provided that the right to relief of the
persons proposing the same question of law of fact which, if separate
action were instituted, would arise on such action, and provided that
there may be a joinder conditionally upon the claim of any other
plaintiff failing.’



It is now our settled legal position that a direct and substantial
interest is an interest in the right which is the subject matter by
the litigant and not merely a pecuniary interest, see
Marine Resources (Pty) Ltd v Ferina (Pty) Ltd
These courts have adopted a paradigm shift towards the strict
application of this principle to an extent that where the need for
joinder arises they will ensure that interested parties are afforded
an opportunity to be heard (see Maletzky’s recent judgment),
August Maletzky v The
Minister of Justice and 2 others
Case No A 9/2013 delivered on 8 November 2013.


This in fact is not strange as for all intents and purposes is in
line with the strict requirements of the rules of natural justice

Ex Parte Body
corporate of Caroline Court
and Pretorious v Slabbert
The substantial interest factor attracts a lot of judicial importance
to an extent that the courts have arrogated themselves a right to
raise it

where justice so demands, see
Engineering Union v Ministry of Labour
where the court stated:


Indeed it seems clear to me
that the Court has consistently refrained from dealing  with
issues in which a third party may have a direct and substantial
interest without either having that party joined in the suit or, if
the circumstances of the case admit of such a course, taking other
adequate steps to ensure that its judgment will not prejudicially
affect that party’s interests. There may also, of course, be
cases in which the Court can be satisfied with the third party’s
waiver of his right to be joined, e.g. if the Court is prepared,
under all the circumstances of the case, to accept an intimation from
him that he disclaims any interest or that he submits to judgment. It
must be borne in mind,
that even on the allegation that a party has waived his rights, that
party is entitled to be heard; for he may, if given the opportunity,
dispute either the facts which are said to prove his waiver, or the
conclusion of law to be drawn from them, or both


Mere non-intervention by an
interested party who has knowledge of the proceedings does not make
the judgment binding on him as res judicata.


First respondent has
further stated that  he is entitled to contact with any party in
terms of section 14 (1) of the Defence Act which provides:


General Powers of the


14 (1)   The
Minister may do or cause to be done all things which are necessary
for the efficient defence and protection of Namibia or any part


It is his understanding that he has a right to exercise his executive
powers to make decisions relating to defence, Inter alia to
direct, coordinate and supervise the entities of the Ministry of
Defence. He further argues that he also has the power to direct,
coordinate and supervise the activities of state owned enterprises
pertaining to defence and for that reason that his dealings with
fourth and fifth respondents are justified. These powers involve the
establishment of economic organisations.


This authority is challenged by the applicants. However, it is worth
noting that on the 21st June 2013 first respondent
extended the applicants contracts to continue supplying food rations
to first respondent regardless of imminent expiry of the said
contracts on the 30th June 2013. This new development was
welcomed by applicants as it was beneficial to them. The question is
whether this action by first respondent cannot be challenged on the
same basis of lack of authority. Applicants have conveniently chosen
not to refer to this action with regards to a trace of illegality.
The reason for this is to my mind is obvious as it is sweet music to
their ears and was a huge benefit for they benefitted without going
through tender. In my opinion, first and second respondents must have
used their discretional powers in terms of the law (supra). If this
was so, why does it only become an issue now? It is beyond question
that first respondent has a ministry to run and it is only reasonable
to make some policy decisions while on his feet, all in the interest
of the nation as stipulated in section 14 (1) of the Defence Act


I find no legal reason to query his decisions to engage and/or
contract any economic organization in the absence of a decision by
third respondent. Surely, if he did so previously for economic and
security reasons why should it become an issue now when the previous
beneficiaries are set to be left out. It is his right to consider who
he finds suitable to supply food for his soldiers. While the
regulations indeed place checks and balances on the executive,
however, extreme care should be taken in allowing unfettered and at
times unjustified interferences actuated by personal as opposed to
national interests to an extent of rendering the executive incapable
of effectively governing in a fair manner and above all in the
interest of all citizens. In this sentiment, I take a leaf from
remarks by O’Regan J in the matter of
Mpulanga and Another v Executive Committee, Association of
state-aided schools, Eastern Transvaal
where O’Regan, J


In determining
what constitutes procedural fairness in a given case, a court should
be slow to impose obligations upon government which will inhibit its
ability to make and implement policy effectively (a principle well
recognized in our common law and that of other countries). As a young
democracy facing immense challenges of transformation, we cannot deny
the importance of the need to ensure the ability of the Executive to
act efficiently and promptly. On the other hand, to permit the
implementation of retroactive decision without, for example,
affording parties an effective opportunity to make representations
would flout another important principle, that of procedural


This country is equally a
young democracy and this approach is in all fours with South Africa
as observed by the learned Judge in the above matter.


In arriving at this conclusion I bear in mind that third respondent
has not adjudicated on tenders. The fact that a determination is yet
to be concluded makes this application a far cry for the envisaged
order, and hence premature.


It has been argued on behalf of applicants that the fact that they
were invited to tender in the supply and services entitle them to a
remedy on the basis of legitimate expectation, see
v The Minister of Health and Social Services


Married to this argument is the question of legitimate expectation
caused by applicants. Mr Marais based his argument on the fact that
applicants responded to an invitation to tender and as such they
expected to be awarded the tender, which would have meant the
continuation of the status quo. I do have a difficulty in
being persuaded to go along with this argument. The fact that the
tenders are yet to be determined does not guarantee applicants
success in the tender process unless applicants are aware that they
will be rubber stamped to their favour.


A wide debate has been held concerning the principle of legitimate
expectation, perhaps it is important to refer to the famous English
case of
, Council of
Church Services C v Minister of the Civil Service
where it was stated that
legitimate expectation arises either from an expressed promise on
behalf of a public authority or from the existence of a regular
practice which the claimant can reasonably expect to continue. It is,
therefore, not an isolated principle, but, is inseparable from the
need for a fair hearing. The question which it encompasses is whether
or not a party expecting a certain decision to be made by a certain
body is assured of a fair hearing or adjudication, see
of the Republic of South Africa and others v South African Rugby
Union and another
National Director
of Public Prospections v Phillips
the learned judge laid down the requirements for a legitimate
expectation as follows:


representation underlying expectation to be clear unambiguous and
devoid of relevant qualification;

expectation to be reasonable;

representation to have been induced by decision-maker;

representation to be one which is competent and lawful for
decision-maker to make, without which reliance cannot be legitimate.


Any extension of operation of legitimate expectation which relies
upon conduct of unauthorized State official or one going beyond his
or her statutory power to bring about effect of nolle prosequi is
both unnecessary and undesirable.


In casu third
respondent is yet to adjudicate on the tenders, therefore no decision
has been made. First respondent has for whatever reason unilaterally
decided to extend their contracts up to the 30 September 2013, this
was without the award of tenders. For obvious reasons, non of the
applicants is attacking this decision as it is to their benefit.
Surely if in all fairness first respondent was given a free hand to
extend their contracts, what is the issue if he uses the same powers
to invoke them in contracting other suppliers pending the
determination of tenders by third respondent. In the result find


There was
urgency in this matter as applicants were entitled to know what the
position was with regards to tenders;

There is a
need to join the Chief of the Defence Forces as he is an interested
party in these proceedings;

respondent has a right to contract with any party to supply food
rations to his Ministry in furtherance of the smooth running of his
Ministry pending the adjudication of tenders by the third respondent.




The application is
dismissed with costs and such costs include two legal practitioners.









Mr Marais with him Ms Schimming-Chase

by MB De Klerk & Associates



Mr S Namandje

Sisa Namandje & Co.




Coleman with him Mr Murorua

Government Attorneys



Salt and another v Smith 1990 NR 87 (HC)

Bergman v Commercial Bank Namibia & another 2001 NR 48 at P49

Vaartz v law Society of Namibia 1990 NR 332 at 334H.

Nakanyala v Inspector General of Namibia & others 2012 (1) NR
200 at 213 par. 46.

Namibia Marine Resources (Pty) Ltd v Ferina (Pty) Ltd  1993 (2)
SA 737 (NM)

Ex Parte Body corporate of Caroline Court 2001 (4) SA 1230.

Pretorious v slabbert  2000 (4) SA 935 (SCA) at 939 C-F

Amalgamated Engineering Union v Ministry of Labour  1949 (3) SA
637 (A) at 659-660

Mpulanga and another v Executive Committee, Associatio  of
state-aided schools, Eastern Transvaal  1999 (2) SA 91 (CC) at
109 par. 41.

Lisse v The Minister of Health and Social Services 2004 NR 107.

Council of Church Services C v Minister of the Civil Service [1984]
3 Aller 935 (HL).

President of the Republic of South Africa and others v South African
Rugby Union and another  1999 (4) SA 147 (CC)

National Director of Public Prospections v Phillips 2002 (4) SA 60 W