Court name
High Court Main Division
Case number
APPEAL 320 of 2014
Case name
Tulipamwe Consulting Engineers v Roads Authority and Others
Media neutral citation
[2015] NAHCMD 103
Judge
Miller AJ










REPUBLIC OF NAMIBIA




HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case no: A 320/2014





DATE: 09 APRIL 2015





In the matter between:





TULIPAMWE CONSULTING
ENGINEERS.................................................................APPLICANT





And





ROADS
AUTHORITY.......................................................................................FIRST
RESPONDENT





ROADS
FUND...............................................................................................SECOND
RESPONDENT





THE CHAIRPERSON OF THE TENDER
COMMITTEE.........................THIRD
RESPONDENT


OF
THE..................................................................................................................FIRST
RESPODENT





LITHON-GIBB (PTY)
LTD.........................................................................FOURTH
RESPONDENT








Neutral citation:Tulipamwe
Consulting Engineers v Roads Authority (A320/2014) [2015] NAHCMD 103
(9 April 2015)





Coram: MILLER AJ





Heard: 9 April 2015





Delivered: 9 April 2015 (ex tempore)





Judge: made available: 29 April 2015





ORDER








1.The first respondent is ordered to
make the record of the proceedings available to the applicant within
10 days from the date of this order and to advise the Registrar of
this Court that it has done so.





2.The first respondent shall pay the
applicant’s cost which shall include the cost of one
instructing and two instructed counsel.





3.The matter is postponed to 30 April
2015 at 15:30 for a status hearing.








JUDGMENT





MILLER AJ:





[1]Presently pending before me is an
application in terms of Rule 76 of the Rules of the Court to review
the decision by the first respondent in terms thereof of the
applicant’s tender was either not considered or disallowed.
Rule 76 reads as follows and I quote: ‘All proceedings to bring
under rewiew the decision or proceedings of an inferior Court,
Tribunal and an Administrative body or Administrative Official are,
unless a law otherwise provides by way of application directed and
delivered by the party seeking to certain review such decision or
proceedings to the Magistrate or Presiding Officer of the Court, the
Chairperson of the Tribunal, the Chairperson of the administrative
body or administrative official and to all other parties affected.





[2]An application referred to in sub
rule (1) must call on the person referred to in the sub rule to, (a)
show cause why such decision or proceeding should not be reviewed and
corrected or set aside, b) Within 15 days after receipt of the
application to serve on the Applicant a copy of the complete record
and file with the registrar of the original record of such
proceedings so to be corrected and set aside together with reasons
for the decisions and to notify the Applicant that he or she has done
so’.





[3]Rule 76 finds resonance with the
Constitutional principles enshrined in Article 18 of the Namibian
Constitution which obliges Administrative bodies and Tribunals to act
fairly. It is common cause that the applicant has called on the first
respondent to comply with sub rule (2) of Rule 76 which I have quoted
above. It is further common cause that the first respondent has not
complied with the rule in as much as the record has not been made
available to the applicant.





[4]The purpose of the rule is set out
in Judgment of Kriegler AJA as he then was, in Jockey Club of South
Africa v Forbes 1993 (1) SA 649 (A). It is apparent that an
application in terms of Rule 76 affords the Applicant the right to
have access to the record of the proceedings under review and to
amplify or vary or amend the notice of motion and the founding
affidavit. The reason for it in my view is that the decision is
taken in the absence of the applicant and in order to make out its
case the rule provides that the record should be provided.





[5]The respondent represented by Mr
Frank assisted by Ms Sauls adopt the stance that the applicant did
not make out a prima facie case in the founding affidavit. Henceforth
so it is argued the provisions of the sub rule (2) of the Rule 76 do
not find application. The principle is that in considering whether a
prima facie case has been made out or not the court will accept that
the facts stated in the founding affidavit are correct.





[6]I also bear in mind that in order to
make out a prima facie case requires a fairly low threshold and it is
sufficient if the facts set out in the founding affidavit is
sufficient to conclude that a reasonable court may or could find in
favor of the applicant. It is apparent from the founding Affidavit
that the tender was either not considered at all or that it was
disqualified on the basis that it was tainted by corrupt acts on the
part of the applicant and its employees. It would appear if the
tender was disqualified or was not considered at all because so it is
alleged, the applicant’s tender did not comply with the tender
requirements in as much as an alternative tender was submitted.





[7]This allegation is denied by the
applicant in the founding affidavit. It also denies the further
allegation that there was any corrupt practice which could have led
to the disqualification of the tender. If either of these
allegations are correct, it would follow that the first Respondent
did not act reasonably in considering the tender application of the
Applicant. I am satisfied that on a prima facie basis a case has been
established on the founding papers for the review of the first
Respondent’s decision.





[8]In the circumstances the following
orders are made:





1.The first respondent is ordered to
make the record of the proceedings available to the applicant within
10 days from the date of this order and to advise the Registrar of
this Court that it has done so.





2.The first respondent shall pay the
applicant’s cost which shall include the cost of one
instructing and two instructed counsel.





3.The matter is postponed to 30 April
2015 at 15:30 for a status hearing.





PJ MILLER





Acting Judge





APPEARANCES





APPLICANT: Mr Heathcote, assisted by
Ms Van Der Westhuizen





Instructed by Van der Merwe-Greef
Andima Inc. Windhoek








RESPONDENT: Mr Frank, assisted by Ms
Sauls





Instructed by Sauls & Co Law
Chambers, Windhoek





Instructed by Ellis Shilengudwa Inc,
Windhoek