Court name
High Court Main Division
Case name
Inter-Africa Security Services CC v Transnamib Holdings Limited
Media neutral citation
[2015] NAHCMD 276
Judge
Parker AJ










REPUBLIC OF NAMIBIA




HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case no: A 236/2015





DATE: 17 NOVEMBER 2015





In the matter between:





INTER-AFRICA SECURITY SERVICES
CC........................................................1ST
APPLICANT





TRIPLE ONE INVESTMENT
CC...........................................................................2ND
APPLICANT





And





TRANSNAMIB HOLDINGS
LIMITED..............................................................1ST
RESPONDENT


THE CHAIRPERSON OF THE TRANSNAMIB


TENDER
COMMITTEE......................................................................................2ND
RESPONDENT


INDEPENDENT SECURITY
SERVICES..........................................................3RD
RESPONDENT


NKASA SECURITY
SERVICES.........................................................................4TH
RESPONDENT


SPLASH
INVESTMENT......................................................................................5TH
RESPONDENT


CIS SECURITY
SERVICES.................................................................................6TH
RESPONDENT


SHILIMELA SECURITY
SERVICES................................................................7TH
RESPONDENT


NAMIBIA PROTECTION
SERVICES...............................................................8TH
RESPONDENT


RUBICON SECURITY
SERVICES....................................................................9TH
RESPONDENT


SECURITY TRAINING COLLEGE OF
NAMIBIA.......................................10TH
RESPONDENT


OMBALA TRADING
ENTERPRISES.............................................................11TH
RESPONDENT


STEFMORY
INVESTMENT..............................................................................12TH
RESPONDENT


MAXI SECURITY
ENTERPRISES..................................................................13TH
RESPONDENT


ONE AFRICA INVESTMENT
CC....................................................................14TH
RESPONDENT


SIRIVA INVESTMENT
CC................................................................................15TH
RESPONDENT


AMON SECURITY
SERVICES.........................................................................16TH
RESPONDENT


SITANA
CONSTRUCTION...............................................................................17TH
RESPONDENT


DIBASEN TRADING
ENTERPRISE...............................................................18TH
RESPONDENT


NAMIBIA PEOPLES
PROTECTION..............................................................19TH
RESPONDENT


SHANIKA
PROTECTION.................................................................................20TH
RESPONDENT


LION PROTECTION
SERVICES......................................................................21ST
RESPONDENT


WAAKALI SECURITY
SERVICES..................................................................22ND
RESPONDENT


SHINE CONSULTANT
SERVICES..................................................................23RD
RESPONDENT


BAOBAB SECURITY
SERVICES....................................................................24TH
RESPONDENT


TIGER SECURITY
SERVICES........................................................................25TH
RESPONDENT


SOUTHERN
SECURITY....................................................................................26TH
RESPONDENT


NGATUKONDJE
TRADING.............................................................................27TH
RESPONDENT


LUKROSE INVESTMENT
CC.........................................................................28TH
RESPONDENT


WINDHOEK SECURITY
SERVICES..............................................................29TH
RESPONDENT


ROYAL SECURITY
SERVICES.......................................................................30TH
RESPONDENT


SHIMWE TRADING
ENTERPRISES...............................................................31ST
RESPONDENT


WETU MULTI
INVESTMENT..........................................................................32ND
RESPONDENT


RENDORA COMMERCIAL
ENTERPRISES.................................................33RD
RESPONDENT


LC
INVESTMENT..............................................................................................34TH
RESPONDENT


KEETMANS LION FORCE
SECURITY.........................................................35TH
RESPONDENT


KATIMBO SECURITY
SERVICES..................................................................36TH
RESPONDENT


ONYEKA PROTECTION
SERVICES.............................................................37TH
RESPONDENT


NSS........................................................................................................................38TH
RESPONDENT


CHISUMA MULTI
SERVICES.........................................................................39TH
RESPONDENT


OMLE SECURITY
SERVICES.........................................................................40TH
RESPONDENT


URAN SECURITY
SERVICES...........................................................................41ST
RESPONDENT


OTAMANZI SECURITY
SERVICES...............................................................42ND
RESPONDENT


GM SECURITY
SERVICES..............................................................................43RD
RESPONDENT


CHIPPA TRADING
ENTERPRISES................................................................44TH
RESPONDENT


CHOBE
SECURITY............................................................................................45TH
RESPONDENT


JJJ TRADING
ENTERPRISES.........................................................................46TH
RESPONDENT


MVINGU SECURITY
SERVICES....................................................................47TH
RESPONDENT


THATO
CONSTRUCTION................................................................................48TH
RESPONDENT


MAYFIELD PROTECTION
SERVICES.........................................................49TH
RESPONDENT


IIPUMBU INVESTMENT
SERVICES.............................................................50TH
RESPONDENT


ONAMAPONGWA TRADING
ENTERPRISES...............................................51ST
RESPONDENT


KHAIBASEN SECURITY
SERVICES.............................................................52ND
RESPONDENT





Neutral citation: Inter-Africa
Security Services CC v Transnamib Holdings Limited (A 236-2015)
[2015] NAHCMD 276 (17 November 2015)





Coram: PARKER AJ





Heard: 28 October 2015





Delivered: 17 November 2015





Flynote: Applications and motions –
Urgency – Requirements for prescribed by rule 73(4)(a) and (b)
of the rules of court – Applicant must set out explicitly the
circumstances relating to urgency and reasons why the applicants
claim they could not be afforded substantial redress in due course –
‘Substantial redress’ not synonymous with ‘damages’
– And applicant must make out a case for urgency in founding
affidavit – No urgency where urgency is self created –
Respondent bears no onus, none at all, to establish the opposite,
namely, that the matter should not be heard on the basis of urgency –
Respondent only need to answer to applicant’s averments that
the application be heard as a matter of urgency.





Summary: Applications and motions –
Urgency – Requirements for prescribed by rule 73(4) of the
rules of court – Applicant must set out explicitly the
circumstances relating to urgency and reasons why the applicants
claim they could not be afforded substantial redress in due course –
‘Substantial redress’ not synonymous with ‘damages’
– And applicant must make out a case for urgency in founding
affidavit – No urgency where urgency is self created –
Court found that the applicants failed to satisfy the requirements
for urgency prescribed by rule 73(4) of the rules – Court found
further that urgency was self created – Applicants had been
aggrieved by decision of first respondent in July 2015 but only
approached the court for relief on urgent basis in September 2015
without justification – Consequently, court refused application
on the basis that the requirements in rule 73(4) have not been met.





ORDER





The application is refused, on the
basis that the requirements of rule 73(4) of the rules have not been
met, with costs, including costs of one instructing counsel and one
instructed counsel in respect of the first and second respondents and
in respect of the third respondent, respectively.





JUDGMENT





PARKER AJ:





[1] Once more the court is confronted
with an application on tender; this time, tender to do work, that is,
the supply of security service for an employer, the first respondent.
The applicants are represented by Mr Namandje (with him Ms Feris),
the first and second respondents by Mr Obbes, and the third
respondent by Mr Mouton.





[2] The applicant prays the court to
hear the application on the basis of urgency. The first, second and
third respondents have moved to reject the application, and have
raised a preliminary objection to the applicants’ prayer that
the matter be heard on urgent basis. Mr Obbes and Mr Mouton ask the
court to determine the issue of urgency at the threshold before all
else. I have to oblige. After all, it is a point in limine; and so,
it is to the issue of urgency that I now direct the inquiry.





[3] Our law on the practice of urgent
application in terms of rule 73(4) of the rules of court (rule
6(12)(b) in the repealed rules) is well entrenched, as Mr Namandje
submitted. On the rule, I had this to say in Diergaardt v The
Magistrate: Magisterial District of Gobabis (A 231/2013) [2013]
NAHCMD 231 (1 August 2013) (Unreported), para 6:





‘It has been well settled since
Salt and Another v Smith 1990 NR 87, which interpreted and applied
rule 6(12)(b) of the rules of court, that rule 6(12)(b) entails two
requirements; and for an applicant to succeed in persuading the court
to grant the indulgence sought for the matter to be heard on urgent
basis the applicant must satisfy both requirements. The two
requirements are (a) the circumstances relating to urgency which have
to be explicitly set out, and (b) the reasons why the applicant could
not be afforded substantial redress in due course. It is also well
settled that where urgency is self created the court will refuse to
grant the indulgence that the matter be heard on urgent basis
(Bergmann v Commercial Bank of Namibia Ltd 2001 NR 48).’





[4] Rule 6(12)(b) is now repealed, and
the provisions contained therein are rehearsed in rule 73(4) of the
rules of court. It need hardly saying that the two requirements must
all be satisfied together by an applicant because they are
intrinsically intertwined. The width of the wording of the rule
compels this conclusion; and what is more, the applicant must make
out a case in the founding affidavit to justify the grant of the
indulgence that the application be heard as a matter of urgency.
(Salt and Another v Smith) See also the high authority of the Supreme
Court, per Strydom AJA, in the case of Stipp and Another v Shade
Centre and Others 2007 (2) NR 627 (SC) which Mr Obbes referred to the
court.





[5] In this regard I hold that a
respondent bears no onus – none at all – to establish the
opposite, namely, that the matter should not be heard on the basis of
urgency. A respondent only need to answer to the applicant’s
averments that the application should be heard as matter of urgency.
For this reason, I put no currency on Mr Namandje’s submission
that paras 23, 24, 25 and 26 in the answering affidavit are
inconsistent. Whether they are or they are not is of no moment in the
determination as to whether the applicant has satisfied the
peremptory requirements of rule 73(4) in the answering affidavit.





[6] The applicants have set out in
paras 79 to 86 what they consider to be circumstances relating to
urgency which, in their view, are explicitly set out, and the reasons
why they claim they could not be afforded substantial redress in due
course, which in their view are also explicitly set out. I proceed to
consider those paragraphs. As I see it, only in para 83 that the
applicants make a weak and unsatisfactory attempt to satisfy the
second part of the requirements on urgency; and I shall consider it
in due course.





[7] There is no merit in these grounds
tending to set out explicitly circumstances relating to urgency. On
the papers the conclusion is inescapable that the applicants say they
have been aggrieved since at least 29 July 2015 by the first decision
not award the tender to them. They have, therefore, known since at
least that date that ‘any award in this matter is massively
tainted because of a number of grounds’, as they themselves
aver. It is, therefore, safe to hold that the applicants had grounds
already in their bossoms to challenge the tender not being awarded to
them; otherwise, they would not make such a statement on oath. With
such knowledge they chose not to take steps to get redress in the
court. And not that they did not know what to do. They stated on oath
that ‘[t]he process will therefore be liable to be reviewed and
aside in the High Court’.





[8] On 29 July 2015 the applicants,
through their legal representatives, wrote to the first respondent
for ‘full reasons’ why their bids were unsuccessful and
‘full reasons’ why some bidders were successful. The
first respondent was requested to provide the ‘full reasons on
or before the 5th of August 2015’. What follows is significant
for our present purposes.





[9] The response of the first
respondent to the 29 July 2015 letter was a letter dated 4 August
2015; and it did not contain ‘the full reasons’ the
applicants had requested from the first respondent. In fact, not only
did the 4 August 2015 letter not give to the applicants what they had
asked for, but the letter also informed the applicants in no
uncertain terms that ‘as a temporary measure, we have engaged
the successful bidders to commence with the provision of services’.
Thus, by its letter of 4 August 2015, the first respondent called the
applicants’ bluff, to use a pedestrian language.





[10] Indeed, that was the time when any
reasonable applicant, who has legal advice at his or her disposal and
who was desirous of protecting his or her interest or rights, should
have sprung into action to seek redress without wasting any time. It
is important to make this crucial point. As I have mentioned
previously, a threat of legal proceedings in the form of ‘urgent
interim relief’ had already been made on 29 July 2015; and its
not the case where the applicants did not know what to do, as I have
found previously. I should make the following point. Parties who make
such threats and do not follow their threats through timeously should
have their request for the court’s indulgence that the matter
be heard on the basis of urgency refused.





[11] In the instant case, I fail to see
any good reason, none at all, and none has been placed before the
court on the papers, why when the applicants received the 4 August
2015 letter from the first respondent the applicants did not approach
the court for relief when their legal representatives instructed the
first respondent that in our law a person aggrieved by an act of an
administrative body or an administrative official is entitled to
reasons for the act, and yet got no reasons. I accept Mr Obbes’s
submission that the applicants do not tell the court why a rule nisi
proceeding could not have been instituted promptly in July 2015, or,
as I say, so soon after 4 August 2015. In this regard it must be
remembered that the applicants aver that they noted ‘an
irregularity in the procedure in relation to the closure and opening
of the tender’ on 22 April 2015. But they did not take steps to
seek redress in April 2015 or July 2015; and what is more; as I have
found previously, the applicants did not act so soon after 4 August
2015 despite their unambivalent and unambiguous threat to institute
an application not in the ordinary course but as an urgent
application. They waited until 3 September 2015, and then decided to
drag the respondents to court at great speed.





[12] I have set out the aforegoing
facts and analyses to come to the conclusion that the applicants have
failed to set out explicitly the circumstances relating to urgency.
It is also to make the point that the conduct of the applicants
answers loudly to a finding that the urgency is self created. See
Bergmann v Commercial Bank of Namibia Ltd. For these reasons alone
this court is entitled to refuse to exercise its discretion in favour
of hearing the application as a matter of urgency.





[13] But then Mr Namandje refers to the
court Petroneft International and Another v The Minister of Mines and
Energy and Others Case No. A 24/2011 (Unreported) to support his
argument that the matter is urgent, and that it ought to be disposed
of expeditiously because the public has an interest in seeing that
justice is done when, according to counsel, an administrative body or
an administrative official commits irregularities when carrying out
an act.





[14] Mr Namandje, with respect, shoots
at his own foot. If that was the position of the applicants, then I
still do not see why they did not approach the court in April 2015
when the irregularities are alleged to have occurred or so soon after
4 August 2015 when they realized that their entitlement to be
furnished with reasons for the first respondent’s decision not
to award the tender to them was violated and they were aggrieved
thereby, particularly when they stated at that material time that
they had grounds to rely on in order to support an application to the
court to review and set aside the award of tender.





[15] I should also say that unlike
Petroneft International, there is nothing complex in the instant
matter. ‘The process of preparing the application’ has
not been shown to be ‘difficult’. It has not been shown
also that it ‘entailed assembling the contractual
documentation, researching statutory and other material, establishing
historical background and taking advice from legal practitioners and
thereafter consultations and finalizing papers between London,
Namibia and elsewhere’. (para 24) On the facts Petroneft
International is clearly distinguishable.





[16] In any case, as Smuts J said in
Petroneft International (para 28), as it should be in this case, too,
‘the applicants must not however have created their own
urgency’. If they felt irregularities had been committed, the
more reason why they should have acted with speed and promptness.





[17] In sum, I find that the applicants
have not set out explicitly the circumstances relating to urgency.
What the applicants have done is to draw conclusions without setting
out the facts explicitly upon which the conclusions are drawn.
Indeed, the urgency is self created on any pan of scale.





[18] For these reasons alone the court
is not entitled to exercise its discretion in favour of granting the
indulgence sought. But for completeness, I pass to consider the
applicants abortive attempt to satisfy the second element in the s
73(4) requirements.





[19] The applicants say that it ‘is
difficult in law to quantify damages as an alternative redress in
matter(s) of this kind’; and that ‘the Courts are
reluctant to award damages in a public tendering process in
circumstances where the irregularities are …’. Here,
too, the applicants have failed to set out explicitly the reasons why
they could not be afforded substantial redress in due course. The
requirement is ‘substantial’ redress and not
‘alternative’ redress. In any case, the fact that it may
be difficult to quantify damages in such matters does not mean that a
redress in the form of damages do not exist or that damages cannot be
substantial redress. Be that as it may, it must be remembered that
‘substantial redress’ is not synonymous with ‘damages’.





[20] Based on these reasons, the
application is refused, on the basis that the requirements of rule
73(4) of the rules have not been met, with costs, including costs of
one instructing counsel and one instructed counsel in respect of the
first and second respondents and in respect of the third respondent,
respectively.





C Parker





Acting Judge





APPEARANCES





APPLICANT : S Namandje (assisted by
A Feris)





Of Sisa Namandje & Co. Inc.,
Windhoek





FIRST AND SECOND RESPONDENTS: D
Obbes





Instructed by ENSafrica|Namibia
(Incorprated as LorentzAngula Inc.), Windhoek





THIRD RESPONDENT: C J Mouton





Instructed by Neves Legal
Practitioners, Windhoek