Court name
Supreme Court
Case number
SA 37 of 2010
Case name
Minister of Education and Others v Free Namibia Caterers (Pty) Ltd
Media neutral citation
[2013] NASC 8
Judge
Maritz JA































REPORTABLE


CASE
NO.: SA 37/2010



















IN THE SUPREME COURT
OF NAMIBIA















MINISTER OF
EDUCATION



CHAIR OF TENDER
BOARD OF NAMIBIA



CONGER INVESTMENTS
(PTY) LTD


t/a
ATLANTICFOOD SERVICES




1stAppellant



2ndAppellant






3rd
Appellant


In the matter
between:



and










FREE
NAMIBIA CATERERS (PTY) LTD



Respondent








Coram: MARITZ JA,
CHOMBA AJA and MTAMBANENGWE AJA



Heard: 17
October 2011



Delivered: 15
July 2013







APPEAL JUDGMENT











CHOMBA AJA (MARITZ JA AND
MTAMBANENGWE AJA concurring)




  1. The cradle of this hotly
    contested appeal was an administrative decision made on 9 May 2009,
    awarding a tender to the Atlantic Food Services, whichis said to be
    the trading name of Conger Investments (Pty) Ltd, the third
    appellant herein. At this juncture it is premature to particularise
    the maker of that decision, but it suffices to state that those
    involved in the decision making process were the Ministry of
    Education, represented by the Minister of Education, first
    appellant, and the Chair of the Tender Board of Namibia, second
    appellant. The respondent, Free Namibia Caterers (Pty) Ltd, was the
    party dissatisfied with the said decision and hence the originator
    of the action which ultimately led to the current appeal. An
    elaboration of the scenario in which that decision was made is
    necessary for the purpose of appreciating what prompted the
    institution of the court action by the respondent; and it is to that
    scenario that I now turn.









  1. In the year 2009 the
    Ministry of Education(the Ministry) felt a need toinvite tenders
    from interested catering companies to provide a variety of food
    stuffs to government primary and secondary school hostels in eight
    regions of Namibia, namely Caprivi/Kavango, Ohangwena/Oshikoto,
    Omusati/Oshana, Erongo/Kunene, Khomas, Otjozondjupa, Omaheke and
    Hardap/Karas. The catering services were required to be provided
    over a period starting on 1 April 2009 and ending on 31 March 2014.
    To that end in January 2009 the Ministry advertised tender No. A9 –
    11/2009; it was to close at 14h30 on Tuesday, 17 February 2009.
    Twenty-two catering companies showed interest and duly submitted
    bids as requested. The region of concern for the purpose of this
    appeal is Ohangwena/Oshikoto and it suffices to mention that the
    bidders for that region included the third appellant and the
    respondent. Mrs Christina LouizaMagriethaMentz (MrsMentz), Managing
    Director of the respondent company and deponent of the founding
    affidavit in this matter, in due course got wind that the Tender
    Board was to sit on 8 May 2009 to consider the bids. Thereafterand
    contrary to her expectations, she learned that the respondent was
    disqualified, but she was kept in the dark regarding the outcome of
    the consideration of the tenders.









  1. In the result,on 12 May,
    MrsMentz wrote a letter to the Tender Board which she couched in the
    following terms:








Tender
number A9-11/2009 catering services to Government school hostels of
the Ministry of Education for the period 1 April 2009 to 31 March
2014







With reference to the Tender Board
sitting on 8/5/2009.







We (illegible) on not receiving any
fax from the Tender Board that although we came through all the
qualifying rounds, and have established stores and facilities in
Ohangwena/Oshikoto region, that we are not successful to be allocated
any part of the education tender.







We are hereby
requesting both the Ministry of Education and the Tender Board to
answer the following questions:







1) Why have a
system been instigated of grading tenderers and what role does it
serve if on allocation the scores are ignored in allocating tenders
to companies who had lower scores?







2) Why have a
company been granted the tender which have no current infrastructure
or trucks in the region while we have established infrastructure
already? (As this was the major concern during the inspections)







3) If the Tender
Board has used the reason that our price is too high to disqualify us
– why then have Khomas been granted to OKG Food at an even
higher price than ours?







4)
Please
also supply us with full disclosure of the reasons and comparison
made between us and the other company and why they were granted the
tender and not us.
(The
italics are mine)







We need to have this addressed as a
very urgent matter, and therefore the deadline for your reply is
Monday 18th May 2009.’



The reply came from the
Permanent Secretary in the Ministry and, in laconic terms, merely
acknowledged receipt of MrsMentz’s letter and confirmed that
the respondent’s bid had been disqualified. MrsMentz addressed
a number of similar letters of inquiry to the Ministry of Education
and the Tender Board. In due course,the latter, that is the Tender
Board, sent to the respondent a reply. It was dated 26 June 2009, and
because of the significance of its content,it is necessary to
reproduce it in full. It read as follows –







Dear Sir,







TENDER NO. A9 – 11/2009:
CATERING SERVICES TO GOVERNMENT SCHOOL HOSTELS OF THE MINISTRY OF
EDUCATION FOR THE PERIOD 1 APRIL TO 31 MARCH 2014.



Your faxed letter dated 23 June 2009
regarding the abovementioned tender has reference.







The Tender Board has requested the
Ministry of Education to respond to the concerns raised in your
previous letter, but to date no response has been received.







Since the Ministry of Education has
dealt with the entire process and the Evaluation Committee was
appointed under the auspices of the Ministry, the latter is in the
best position to answer to your letter.







Please be assured that feedback will
be provided as soon as the Tender Board received same from the
Ministry.







Yours faithfully.’ (The
italics have been supplied for emphasis.)







It was signed by the
Tender Board’s Secretary. Despite the undertaking made in terms
of the concluding sentence of the foregoing letter, the respondent’s
ultimate inquiry was never formally responded to.








  1. The management of the
    respondent not being satisfied with the outcome of the respondent’s
    tender result resolved to and did commence court proceedings by way
    of judicial review under rule 53 of the Rules of the High Court. A
    notice of motion was to this end filed on 2 September 2009, with the
    first and second appellants herein as respondents. Three other
    respondents were added, namely Conger Investments (Pty) Ltd t/a
    Atlantic Food Services, Xantium Trading Services, t/a Xantium
    Catering Services, and Heritage Caterers (Pty) Ltd as third, fourth
    and fifth respondents respectively. However, in due course and after
    the respondent had examined the documents relevant to the impugned
    decision, the fifth respondent was dropped out of the proceedings
    and an amended notice of motion was issued. The principal prayers in
    the amended review application wereas set out below -








1. Reviewing
and correcting or setting aside the award of the tenders to the
thirdappellant in respect of the Ohangwena/Oshikotoarea in tender no.
A9-11/2009.







2. Setting aside any agreement entered
into, or any other action taken, in pursuance of the award of the
tender referred to in prayer 1, supra.







3. Ordering that the said tenders for
the Ohangwena/Oshikoto areawarded to the applicant, alternatively,
referring the matter back to the Tender Board of Namibia to properly
apply the recommendations of the adjudication committee.








4. Ordering that the first, second,
third respondents pay the applicant’s costs on a scale of
attorney and own client jointly and severally, the one paying the
others to be absolved, alternatively that those respondents opposing
the application pay the applicant’s costs jointly and
severally, the one paying the others to be absolved.’







[5] Suffice it to state
at this juncture merely that the usual exchange of affidavits between
the parties did take place. I shall delve into the contents of these
as necessary in due course. What needs to be placed on record now is
that the matter eventually went before Parker J, who, after a full
hearing as it is in motion proceedings, upheld the application. The
epitome of his judgment is to be found in paragraphs [15] and [16] of
the judgment which, for a better appreciation, I quote hereunder:







[15]
Accordingly, I come to the following indubitable and reasonable
conclusion: As the law stands, as explained previously, the second
respondent’s abdication to exercise the statutory power reposed
in it, coupled with its failure to give reasons for its decision to
reject the applicant’s tender, as aforesaid, in violation of
article 18 of the Namibian Constitution, as explained previously,
there has been a failure of administrative justice within the meaning
of article 18 of the Namibian Constitution. It follows reasonably and
inexorably that the second respondent’s failure to give reasons
for its decision must, not may, lead to the setting aside of that
decision.







[16] There is, moreover, the untenable
argument that there has been an unreasonable delay in bringing this
review application. Granted, it is necessary that application to
review acts of administrative bodies and officials be launched within
a reasonable time after the taking of the action. But, in the instant
case, how could the applicant have brought the application earlier
that (sic) it did when the second (applicant) in breach of the
Act and the Namibian Constitution failed to give reasons for its
decision when it was a peremptory and legal duty for the second
(applicant) to give reasons for its decision according to the Act and
the Constitution? Accordingly, on the facts and circumstances of this
case, I find that there has not been an undue delay in bringing this
application.’







[6] In keeping with his
decision, the learned Judge ordered that the impugned administrative
action, as well as the agreement entered into in consequence of the
award, be, and they were, set aside. He, however, rejected the
applicant’s prayer to correct the decision by awarding the
tender under dispute to the applicant. As expected, the respondents
to the application, being dissatisfied with the learned Judge’s
decision, appealed his judgment to this Court. In its turn, the
applicant, also being unhappy with the dismissal of its prayer for
correcting the administrative decision and awarding to it the
disputed tender, equally cross-appealed against that part of the
judgment.







The appeal



[7] The first and second
respondents to the application, to whom I shall henceforth refer as
the first and second appellants (just as I shall also refer to the
thirdrespondent as the third appellant), presented their heads of
argument jointly, while the third appellant presented its heads
separately. The first two appellants challenged the lower Court’s
judgment on the following grounds, that is to say that -







1. it erred
in finding that the respondent had requested reasons.







2. it erred by
finding that the second appellant had failed to provide reasons for
its decision not to award the tender to the respondent.







3. it erred in
failing to find thatthe respondent had been aware of the reason why
the tender was not awarded to the respondent.







4. it erred in
finding that a failure to provide reasons for administrative action
invalidates a decision taken by an administrative body.







5. it erred in
finding that the second appellant abdicated its statutory powers.







6. it erred in
rejecting the second appellant’s version in respect of awarding
the tender.







7. it erred in
finding that there has not been an unreasonable delay in launching
the review proceedings.







8. it erred in setting aside the decision of the second respondent
(sic).’







[8] In arguing the
foregoing grounds on behalf of the first and second appellants,
Advocate van der Westhuizen advanced the submissions that it was
clear from the answering affidavit in the review proceedings that the
overriding consideration and, in essence, the reason why the tender
was not awarded to the respondent was the pricing. In other words,
she contended that the respondent’s pricing of its catering
services was comparatively exorbitant,adding that,although it
demanded for the reasons why its tender was disqualified, the
respondent had been well aware of that overriding consideration. She
attributed that supposed awareness to the fact that in the
respondent’s letter of 12 May, supra,MrsMentz had
stated, inter alia, ‘If the Tender Board has used the
reason that our price is too high to disqualify us...’. In the
alternative, learned counsel contended that, having regard to the
totality of its inquiry correspondence addressed to both the first
and second appellants, the respondent had never requested for the
reasons why its bid was rejected. In her view, the respondent merely
communicated questions which were in the nature of cross-examination.







[9] Advocate van der
Westhuizen stressed the importance of the pricing factor in Tender
Board matters by quoting in aid of her argument the dictum in
Cash Paymaster Services (Pty) Ltd v Eastern Cape Province and
Others
1999(1) SA 324 (Ck),atpages 351G-H and 360A , to wit:







The task of
the tender board has always been and will always be primarily to
ensure that the government gets the best service and value for that
for which it pays. If that were not the prime purpose of the tender
board and policy considerations were to override those
considerations, the very purpose of the tender board is defeated and
no tender board needs to exist. It would then be quite simple for the
government simply, on the basis of policy determination, to enter
into contracts for whatever it required without intervention of the
tender board.If the tender board loses sight of its prime purpose as
stated hereinbefore it becomes a threat to government and serves
little purpose.’







At page 360A:







Tender
boards, more than any other government tribunals, have a particular
responsibility in this regard. The value of annual contracts
nationally probably run into billions of rands. If tender boards do
not recognise that their primary task is procurement of the services
of tenderers at the least possible cost to the State, mindful of the
need to honour the demands of the “RDP”, the ability of
the government to balance its budget is greatly undermined.’







[10] It was further
contended by Advocate van der Westhuizen that even if this Court were
to hold that the Court below was right in finding that the respondent
did request for reasons for the rejection of its tender and that the
second appellant had failed to furnish such reasons, the failure to
furnish reasons did not automatically have the consequence of
invalidating the administrative action taken. In supportof that
contention she cited the book,JR de Ville, Judicial Review of
Administrative Action in South Africa,
1stRevised
edition at pages 295-295 (sic) and the authorities cited
there. She added that the failure to furnish reasons did not moreover
justify an inference that the second appellant had abdicated its
statutory powers as was determined by the Court below.







[11] Furthering her
submission on the issue of abdication of statutory power, Ms van der
Westhuizen argued that, on the record and the papers, the Court a
quo’s
finding was unsustainable. To that end she referred
to Mr Schlettwein(the chairman of the Tender Board at the time of the
events under consideration) who had deposed in his affidavit to the
effect that the decision to award the tender to the third appellant
was made by the second appellant alone.








[12] Regarding the issue
of delay in launching the review application presently under
discussion, the first and second appellants’ counsel, quite
correctly, submitted that it was trite that such applications should
be launched with reasonable alacrity, and that the decision whether
or not there is a delay in the launch is relative and is based on the
facts pertinent to each case. In supporting her submission on this
issue, she cited the following decided cases: Chesterhouse (Ltd) v
Administrator of the Transvaal& Others
1951 (4) SA421 (T),
424D-E; Shepherd v Mossel Bay Liquor Licensing Board 1954 (3)
SA 852 (C); and Radebe v Government of the Republic of South
Africa and Other
1995 (3) SA 787 (N) 789-799E. Further
buttressing the issue, counsel added that a court hearing a review
application should consider the prejudice suffered by the respondent
incidental to the delayed launch of the review application.
Furthermore, she stated that it was desirable and of utmost
importance that finality in review disputes should be reached within
a reasonable time citing for this extended point, the case of
Disposable Medical Products v Tender Board of Namibia 1997 NR
129 (HC), 132D-EandThe Civil Practice of the Supreme Court of
South Africa
4 Edat p957 by Herbstein and Van Winsen.







[13] It is apposite to
record that the point on delayed launch of the review application in
casu
was anchored on the fact that the impugned decision was made
on 9 May 2009 and yet the review application was not filed until 2
September 2009, thereby occasioning an alleged delay of 15odd weeks.
The learned counsel was concernedover the alleged delay because the
tender was for a limited period, namely, as already noted, from the
beginning of April 2009 to the end of March 2014, in conjunction with
the fact that the successful tenderers had already invested
financially and otherwise in ensuring that the desired services were
supplied to the Government.







[14] Ms van der
Westhuizen then responded to the point raised in MrsMentz’saffidavit
on behalf of the respondent, namely that in arriving at the decision
to reject the respondent’s tender, the second appellant had not
taken relevant considerations into account, but that it had instead
employed irrelevant factors. This was related to the averment that
the decision favouring the third appellant was hinged on the social
responsibility,which was canvassed on its behalf having regard to the
letters dated 14 April 2009, written by a certain Mildred Jantjies
(Ms Jantjies), the spokesperson for the SWAPO Women’s Council
Secretariat to Mr Alfred Ilukena (MrIlukena), Deputy Permanent
Secretary in the Ministry of Education and Chairman of that
Ministry’s Tender Committee, as read with the letter dated 20
April 2009 written by Mr CKKabajani (MrKabajani), Director:
Programmes and Quality Assurance, Ministry of Educationto the same
addressee, MrIlukena. As I shall discuss these letters in
extenso
later in this judgment, I need not say anything more about
them at this stage.








[15] There were several
other submissions which Ms van der Westhuizen made. However, rather
than deal with them presently, I shall, as becomes necessary, discuss
or allude to them when I come to the stage of assessing the totality
of the facts of this case and the law in the light of submissions put
forward thereon. For now it suffices to record that in her conclusion
Ms van der Westhuizen had the following to state:







...it is
respectfully submitted that the court
a
quo
erred
in reviewing and setting aside the decision by the second appellant
to award the tender to the third appellant. Given the authorities
cited and referred to, it is submitted that the evaluation process
and the subsequent award of the tender to the third respondent (
sic)
was not procedurally flawed and should not have been set aside.’







[16] Let me now turn to
the third appellant’s heads of argument. The third appellant
was in this court represented by Advocate Heathcote. In setting out
MrHeathcote’s arguments and submissions,let me firsttake the
opportunity to correct one misrepresentation he made in his
introductory remarks to his heads of argument. He stated in the third
paragraph that Free Namibia Caterers (Pty) Ltd, the respondent, ‘had
an inside track to the confidential deliberations of the Tender
Board. It knew the decision even before successful tenderers were
informed,
such as the third appellant....’.My
observation is that while the assumption that the respondent had an
inside track may well be correct, the facts of the present matter do
not lend supportto the further assumption that the respondent knew
the Tender Board’s decision
even before
other tenderers,such as the third appellant,
did.
(Italics supplied.)







[17] The learned
counsel’s presumption was premised on the fact that on 12 May
2009 MrsMentz wrote the letter I have quoted in the third paragraph
hereof in which, among other things, she queried that although the
respondent’s bid relating to the Ohangwena/Oshikoto region had
sailed through all the qualifying rounds,she had learned that it
ended up disqualified. My view is that in order to ascertain at what
stage she came to learn that the respondent’s tender had been
disqualified, it is opportune to juxtapose her letter with the letter
of grievance lodged by Ms Jantjies, who equally made a complaint but,

in her case, concerning the third appellant. The latter
letter was written on the third appellant’s letterheads;it
alleged unfairness on the Tender Board’s partinrejectingthe
third respondent’s bid;and, significantly, it carried an even
earlier date than that on MrsMentz’s letter. It was written on
14 April 2009 while MrsMentz wrote hers on 12 May 2009. Ms Jantjies’s
letter brazenly showedthat she equally had an inside track to the
confidential deliberations of the Tender Board. She stated at the
very start of her letterthus:‘As per our reliable information
from within the Government it has come to our attention that our two
companies, Atlantic Food Services and Catering Solutions were
disqualified.’When one dispassionately compares the two
letters, the more logical presumption is, and mustbe,
that
the third appellant had heard about the disqualification of its
tender earlier than the respondent did.







[18] Coming to the heads
proper, the first matter the third appellant’s counsel took up
was in regard to the letters MrsMentz wrote to both the Ministry and
the Tender Board concerning the disqualificationof the respondent’s
tender. Counsel sets the stage to this aspect by quoting the
recommendation of the Ministerial Tender Committee in the Ministry to
the Tender Board and the reason for the same,
thus:







That the
Tender Board award Tender A9-11/2009 to the following tenderers for
the period 1 May 2009 till 30 April 2014 to the total amount of N$207
351 283.00 per annum for 2009/2010 with an increment of 16% per annum
for the next five(5) years, with the final year (2014) amount to be
N$440 993 201.00.’







Atlantic Food Services,
the third appellant, featured prominently in the list of eight
companies which counsel reproduced underneath the above quotation.
Then in as far as the third appellant was concerned, the reason why
its tender qualified was quoted as follows:







The tenderer
was recommended for this catering region because it had the lowest
tendered man-day price in the region. In addition, the tenderer has a
clear social responsibility, for example to create and (
sic)
Education Trust, support disaster situations such as floods and
provide bursaries. Furthermore, the tenderer focuses on the
empowerment of women, youth and people with disabilities.’







The foregoing was
followed by a reproduction of the reason why, on the other hand, the
tender of the respondent was disqualified,viz -







Though the
tenderer met all the requirements their man-day price was too high.’







After the above
references,MrHeathcotethen reproduced a number of letters which the
respondent addressed to the first and second appellants. He labelled
the cumulative effect of the letters as interrogations and not
requests for the reasons why the respondent’s tender was
disqualified. Then heechoed the submission made by Ms van der
Westhuizenthat the letters amounted to fore knowledge on the part of
the respondent that its tender was not successful because of its
exorbitant prices.







[19] I am convinced that
the foregoing submissions made by counsel have painted a lop-sided
picture of a plain sailing success by the third appellant in its bid.
To the contraryand as I shall demonstrate later, the third
appellant’s tender was at first disqualified. Therefore, to
paint a balanced picture,counsel should also have alluded to the
initial stumbling block which this appellant had met before scoring
eventualsuccess. A biased picture has equally been painted purporting
to show that the respondent’s tender was outrightly rejected. I
shall elaborate on this later and show that the respondent’s
tender was initially successful.







[20] As regards the third
appellant’s tortuous route to success, quite apart from the
respondent’s say-so, the evidence to the effect that its tender
was initially rejected is preponderant. Firstly, the extract from
MsJantjies’ letter,hereinbefore referred to,unmistakeably makes
that point. Secondly, in his letter of 20 April 2009 addressed to
MrIlukena, MrKabajani stated the following as captured at page 1393
in volume 13 of the common bundles of documents in the record of
appeal:







THE CASE
OF “ATLANTIC CATERERS” AND “CATERING SOLUTIONS”



I noted from the document provided to
me that the two companies of Atlantic Caterers and Catering Solutions
lodged a complaint with the office of the Permanent Secretary after
they came to realize that they were disqualified.’
(Emphasis
supplied.)







Thirdly, again in the
common bundles of documents,
there is at page
1327 in volume 12 a document entitled,
‘ADDENDUM A –
FIRST AND SECOND DRAFT SUBMISSIONS’.Under cover of
that document,at page 1328,there is a draft letter of recommendations
by the Adjudication Committee addressed to the Tender Board.The
recommendations relate to the Government tender under consideration
and include the following observations concerning the third
appellant. The observations are on page 1331 and read as follows:







10. Atlantic
Food Services –The Tender Bond, Performance Bond and Overdraft
Facility are not in the name of the tenderer, but in the name of the
shareholder, namely Independent Management Project. The Certificate
of Good Standing (Tax Certificate) was issued in the name of Conger
Investments. There is no evidence of a company registration
certificate orchange in name issued in the nameof Atlantic Food
Services.’







The foregoing
observationsfall under the heading ‘TENDERERS WHO ARE
DISQUALIFIED’,
occurring at paragraph 3.3 of the previous
page. Finally, there are handwritten notes occurring at pages1367 to
1370 of the same volume 12. With consent from all the parties, a
typescript of these notes was handed in during the hearing of this
appeal. The notes, which are apparently minutes of a meeting of the
Adjudication Committee, make interesting reading.I now reproduce them
hereunder in their entirety:







16/04/2009







With MrKhama to sign document/covering
letter. Covering letter endorses submission to the Director:PQA.
However, MrKhama didn’t want to sign the covering letter.
Suggestion was made to allocate Omaseke to Atlantic to eliminate all
problems. Meeting with other Committee members was scheduled for
14.30. ? ± 14.45 Present: Ms GD Enssle, Mr Idachebe, Ms
Karamata.



Chair thought covering letter is
improper. Doesn’t like submission to go through Director:
PQA.Wants to take it through PSfor handling.MrKhamahad discussion
with Ms Ilukenaand PS - message was Gov committee has to relook at
awarding Atlantic, to waive criteriain the light of the letter
written by Atlantic. Doesn’t want to veto this tender by Mr
Kabajani, when one looks at womenempowerment.



2 MsKaramata: Why should it go to the
Director of PQA (internal arrangement mentioned by our (unclear) on
previous daythat all tenders should go through the Director)



Committee has guidelines and these 2
companies had not comply, if requirements are waived only for these
2, then same should be done for all.



AG also advised not to relax
requirements. All the tenderers knew the criteria.



(Mr Chairread the letter from Atlantic
to acquaint himself on the content).



(Tender Board has powerto relax
requirement and (unclear) to the legal advisor)



Mr Chair read from the letter: ‘we
were the lowest of all the catering companies (unclear) our social
responsibilities (unclear) needs to be



3 Chair: I warned you previously at
the meeting respect the criteria, let us waive where women are
involved (unclear) this letter is already cc to Hon Amadhila (Min of
Finance). I said for the spirit of (unclear) and empowerment, waive
the compulsory criteria.



Let us formulate: ‘We looked at
the criteria, and waived the compulsory criteria to include Atlantic
because of the social responsibility of the company.



Who gave the guys all the information
exactly as in the submission? (unclear) problems:



(a) How did Atlantic get hold of the
content of the letter



(b) Chair mentioned that he has a
problem to sign the covering letter (Mr Enssle explained the
channelling of the NSFP and other tenders)



Mr Enssle: As much as we would like to
assist them we do not have any power to change: letters should go to
TB who should waive the criteria



To single out one us, we would be in
trouble. Whether we could add ‘we had waived (unclear) who
(unclear) i.t.o............’



Ms Karamata don’t agree, if you
(unclear) women empowerment, what about the other Co that didn’t
qualify



4 Chair: I understand you, but you
cannot compare this Co with other companies



Mr (unclear): Beware



Chair: Politics: If I sign this to go
to Mr Kabajani and this (unclear) bak, what then?



Mr (unclear): Let the PS then guide us
in a letter



Mr E: Do not have any problem.



21/04/2009



Meeting with Mr Ilukena



Complete certain sections



3.6 price preference (11)



Shareholding – put in/add Conger
Investment and Conger/companyAtlantic / + % + remarks



5. Recommendations



Regions × free – Atlantic
N$18.15



In Ohangwena region



Omaheke – catering instead of
Supreme



Next page




  • Take to successful




Motivation



Cheaper in region



Women empowerment Co



i.t.o.affirmative action will enhance
status of women



Comprehensive social responsibility



Package (unclear) page 7



To the (unclear)



Next page



× Check final price
preference
for Atlantic and Catering Solution.’







According to these
minutes, it goes without saying that the members of the committee had
received unpalatable promptings from higherauthorities who wanted the
committee to reverse its earlier adverse recommendation against the
third appellant. The Committee eventually obliged.







[21] It is, therefore,
without doubt that the vaunted qualification of the third appellant’s
tender materialised only after some intervening questionable
manoeuvrings.







[22] Regarding the
disqualification of the respondent’s tender, that was not
outright as already mentioned. There is enough evidence to that
effect. The factual situation is that the respondent’s tender
was initially held to be qualified. This is shown,first by the fact
that in the same draft letter from the Adjudication Committee
addressed to the Tender Board, there is asub-headingtitled
TENDERERS
WHO ARE FOUND
SUITABLE FOR THE RESPECTIVE
CATERING REGIONS’
(the italics are supplied for
emphasis)and under that sub-heading there is at page 1332the
followingentry relating to Free Namibia Caterers, the respondent:







2.
Ohangwena/Oshikoto



Despite having the highest price
preference,it is the only tenderer that has storage in the
Ohangwena/Oshikoto Catering Region. OKG Food Services, Kunene
Catering and Supreme Caterers do not have storage facilities in this
catering region.’







Secondly, in MrKabajani’s
letter,earlier referred to,in which he reflected the Adjudication
Committee’s adverse recommendation against the third appellant,
he alsoreflected that Committee’s list of successful tenderers.
That listincluded Free Namibia Caterers, the respondent.







[23] From the foregoing,
the inference is inescapable that, just as the eventual success of
the third appellant’s tender was the result of improper
interventions, it is equally beyond peradventure that the
disqualification of the respondent’s tender was the consequence
of the same interventions. I shall elaborate on this in due course.







[24] The next submission
MrHeathcote made related to that part of the Court a quo’s
judgment in which it was held that, because of its failure to give
reasons for disqualifying the second respondent’s tender, when
requested to do so by the respondent, the second appellant had failed
to perform its duty stipulated by section 16(1)(b) of the
Tender Board of Namibia Act, No16 of 1996. Counsel further faulted
that Court’s holding that that failure amounted to a violation
of the respondent’s basic human right guaranteed to it by
Article 18 of the Namibian Constitution. Subjected to equal criticism
was the trial Court’s holding that the second appellant had
abdicatedto the first appellant itsstatutory duty of processing
tenders and making decisions thereon. The focal point of counsel’s
criticism was that the Court below erred in as much as it premised
its ratio decidendito justify the review and setting aside the
impugned administrative decision solely on the failure to give
reasons and the alleged abdication of the TB’s statutory duty.
In counsel’s view the Court below also failed to appreciate
that the respondent’s intermediate interdict application to
stop the second appellant from signing service agreements with all
the successful tenderers had a bearing on the timing of giving
reasons in response to the respondent’s letters. In other
words, as I understood him, counsel felt that any delay that might
have occurred in timeously providing the reasons was engendered by
the respondent’s intervening interdict application.







[25] For a better
appreciation of these holdings by the Court below, it is fitting to
reproduce theaforementioned legal provisions.Article 18 states:







Administrative
Justice



Administrative bodies and
administrative officials shall act fairly and reasonably and comply
with the requirements imposed upon such bodies and officials by
common law and any relevant legislation, and persons aggrieved by the
exercise of such acts and decisions shall have the right to seek
redress before a competent Court or Tribunal.’







And section 16 provides:







(1) The
Board shall in every particular case –



(a) …



(b) on the written request of a
tenderer, give reasons for the acceptance or rejection of his or her
tender.’







[26] I am favourably
disposed to counsel’s submission and, therefore, accept that
the learned Judge of the Court a quo fell into error as
regards his ratio decidendi. The learned trial Judge lost
sight of the fact that an application for a review and setting aside
an administrative action is intended to secure justice where there
has been a failure of justice. The failure must be a necessary
component of, and intrinsic to, the decision making process itself.
Consequently an application for review and setting aside must be
premised on one of two grounds, namely gross irregularity or clear
illegality in the process of taking the administrative action
concerned. (Introduction to South African Law and Theory, 2
ed.para4.2.2.2. at p1074). In other words, the applicant’s
attack should be based on an illegality or irregularity intrinsic to
the action itself and not on the basis of what happens either prior
or subsequent to the decision making process. Moreover, the burden to
establish these grounds rests on the applicant for review.
(Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd
and Another
1988(3) SA 132 (A); Davies v Committee of the
JSE,
1991(4) SA 43 (W)). That is why in Davies v The Committee
of the JSE,
Zulman J made the following statement confirmatory of
this legal position, viz:







(t)hereis no
onus on the body whose conduct is the subject matter of review to
justify its conduct. On the contrary, the onus rests upon the
applicant for review to satisfy the court that good grounds exist to
review the conduct complained of. (See for example,
The
Administrator, Transvaal, and the First Investments (Pty) Ltd v
Johannesburg City Council
1971(1)
SA 56 (A) at p 86 A-C.)’







In the alternative,
the essence of, and the
justification for,judicial intervention is to ameliorate the
situation when administrative action has occasioned a failure of
justice.







[27]
In casu, thelearned trial Judge granted the review and
set the impugned decisionaside based on failure by the Tender Board
to give reasons coupled with the alleged abdication of its statutory
duty to itself consider the tenders and make decisions thereon.
Neither of these factors was intrinsic to the actual administrative
action of awarding the service contract to the third appellant nor to
that of disqualifying the respondent’s tender. The factors
relied on by the Court took place either beforethe decision was made,
as in the case of the allegation of abdication, or after the decision
was made, as regards the failure to give reasons. Therefore it can be
said with justification that the learned trial Judge shied away from
the core issue of determining whether or not there was a failure of
justice in the actual granting of the award to the third
appellant or the disqualification of the respondent’s tender,
so as to justify the review and setting aside of the Tender Board’s
decision aforesaid. It is to that untouched issue that I now turn my
attention. The discussion of that issue also presents me with the
opportunity to provide the elaboration which I deferred regarding the
manner in which the third appellant’s tender succeeded while
that of the respondent failed.







[28] As a preface to the
discussion of that issue, let me outline the procedure of processing
tenders leading to the awarding of service contracts to successful
tenderers. The ensuing résumé of the process is based
on the affidavit of MrIlukena whose personal identity and position in
the tender process has earlier been briefly high-lighted.








[29] Tenderers lodge
their bids with the Tender Board, which is a section of the Ministry
of Finance.After a short scrutiny by the Board the tenders are passed
on to the Adjudication Committee. There they are evaluated,
adjudicated on and singly recommended on either favourably or
unfavourably. This exercise entails checking on whether, inter
alia
, they meet certain preset criteria prescribed in the tender
documents. Upon completion of its part, the
Adjudication Committee
submits the tenders to the Director:
Programmes and Quality Assurance who scrutinises them further and
makes his own comments thereon before submitting them to the
Ministry’sTender Committee. The last mentioned Committee gives
its own scrutiny to the recommendations, comments and any other
observations before making its own final recommendations to the
Tender Board. The Tender Board is the decision maker. The Board may,
however, if need arises, refer back to the Ministry’s Tender
Committee any tender recommendation for further evaluation and/or
adjudication before it is finally resubmitted to it for decision
making.







[30] In the preceding
paragraph I have referred to preset criteria with which tenderers
were required to comply in order to be eligible for entry into
agreementsfor the provision of services. The criteriawere in two
categories, namely compulsory or obligatory criteria, and additional
criteria. The compulsory/obligatory criteria (also known as main
criteria) were used to determine the tenderers who can qualifyfor an
award of tenders. The tender documents provided that
non-compliance with these was to result in automatic disqualification
of affected tenders.
(Italics supplied.) These crucial criteria
were listed as:







1. The
Tender Bond







2. The Performance Bond







3. Proof of Overdraft Facility and







4. Letter of Good Standing from a
financial institution.’







The additional criteria
are:







1.
Inspection reports of visits to school hostels







2. Man-day price
(Minimum N$14.14 for primary and N$17.81 for secondary based on
actual wholesale price as per menu, excluding overhead costs







3. Shareholding
(Tenderer can only be granted a maximum of two catering regions,
including if shareholders have cross-ownership in other companies.’







[31] In the light of the
foregoing, let us now look at how Atlantic Food Services, in the name
of which Conger Investments (Pty) Ltd traded, and Free Namibia
Caterers (Pty) Ltd, the third appellant and respondent respectively,
faired.







[32] In order to satisfy
the obligatory criteria, the third appellant produced three letters
the source of all of which was the Standard Bank of South Africa and,
as expected, were all addressed to the Permanent Secretary in the
Ministry. The first was dated 12 February 2009, and the following was
its full text:












Business
Banking Expert



KwaZulu Natal







The Permanent Secretary



Ministry of Education



Office of the Permanent Secretary, 3rd
Floor, Ministry of Education



Government Office Park, Luther Street,
Windhoek



Private Bag 13185



12 February 2009







Dear Sir/Madam,







TENDER APPLICATION REFERENCE
NUMBER: A9-11/2009







We hereby confirm that Independent
Management and Projects (Pty) Ltd conducts their banking account in
our books. The account details are:



Account Number: 252902459



Branch: Umhlanga Ridge



Branch Code: 05782944







We confirm that Independent Management
and Projects (Pty) Ltd have an overdraft facility in our books and
have sufficient working capital to complete the contract.







This letter is issued as a letter of
comfort without recourse to the bank.



If you require any further details
please do not hesitate in contacting me.







DHM Raw



Account Executive



Business Banking KZN’







The next letter was dated
13 February and it suffices to reproduce only its substantive text.It
reads:







1. Our
Bid Guarantee Number: 902130155116774



By this guarantee,
The Standard Bank of South Africa Limited (hereinafter called “the
bank”), herein duly represented by S.Wakefield and
L.A.Stockwell as Managers guarantee herewith as instructed by the
bank’s client Independent Management and Projects (Pty) Ltd
(hereinafter called the “Tenderer”) who has participated
in the Catering Tender for the supply of foodstuffs to Government
schools under contract reference no. A9-11/2009 (hereinafter called
“the tender”), the exclusive credit and benefit of the
Purchaser, upon formal demand made by the Purchaser indicating that:







1.1. The Tenderer
has withdrawn his tender before it was awarded; or







1.2. The Tenderer
after being awarded the tender in question, withdrew and/or failed to
provide the performance guarantee required; or







1.3. The Tenderer
had merely tendered to achieve the objective of manipulating the
tender process/price and/or withdrew the submitted tender to achieve
such objective;







To pay the amount of NAD100,000.00
(Namibian Dollars one hundred thousand only) (hereinafter called “the
Guaranteed Amount”) and no alternation in the terms of the
tender nor any forbearance nor any forgiveness nor any forgiveness in
respect of any matter concerning the tender on the part of the
Purchaser shall in any way release the bank from any liability under
this guarantee.







2. This guarantee shall lapse and
become unenforceable against the bank if:







2.1. the tender is accepted by the
Purchaser within sixty (60) days from the closing date of the tender,
and the tenderer has provided a performance guarantee in terms of the
conditions, specifications and terms of the Tender A9-11/2009; or







2.2. the tender is not accepted within
the said period of sixty (60) days; or







2.3. before the expiration of the said
sixty (60) days of the closing date, a tender from another tenderer
for the supply of foodstuffs has been accepted.



3. The bank’s liability under
this guarantee will expire on the 30thApril 2009
(hereinafter called “the Expiry Date”), after which date
this guarantee will automatically be cancelled whether returned to
the bank or not and any claim received in respect thereof should
reach the bank not later than the Expiry Date. Any claim received
after the said Expiry Date will not be entertained by the bank.







4. No variations to the terms and/or
conditions on the guarantee are permitted without prior written
agreement of all the contracting parties who are legally bound
thereby.







5. This guarantee is subject to the
International Chamber of Commerce Uniform Rules for Demand Guarantees
no. 458.







6. Payment under this guarantee will
only be made of the original guarantee.







7. This guarantee is neither
negotiable nor transferable and is restricted to the payment of money
only.







Signed at Durban for and on behalf of
The Standard Bank of South Africa Limited this 13th day of
February 2009.’







The third and last letter
reads as follows:







13 February
2009







Dear Sir/Madam







INDEPENDENT MANAGEMENT AND PROJECTS
(PTY) LTD



ACCOUNT NUMBER: 252902459



BRANCH UMHLANGA RIDGE



BRANCH CODE 05782944



We hereby confirm that the above
business conducts their banking account in our books. The account was
opened on the 22 June 2006 and since then the account has been very
well conducted with no dishonours on record. We are happy to
recommend client as good for normal business for an amount of R10
million over 39 days.







Based on the information at our
disposal, we are of the opinion that should the company secure a
tender with yourselves, it would have the means to secure a
Performance Guarantee for 3% of the contract amount from ourselves,
subject to the Bank’s normal credit criteria being met.







If you require any further details
please do not hesitate in contacting me.’







[33] The foregoing three
letters were the ones on which the Adjudication Committee initially
based the disqualification of the third appellant’s tender. It
is quite apparent from the letters that they were all intended to
show that the third appellant met the obligatory/compulsory/main
criteria and was thus eligible to be considered whether or not to get
a tender to provide the required services. Alas, however, all the
three letters were recommending a company called Independent
Management and Projects (Pty) Ltd and not Conger Investments (Pty)
Ltd. I understood the appellants’ counsel to contend –
and indeed there is evidence to show – that Independent
Management and Projects (Pty) Ltd was the majority shareholder in the
third appellant with a stake of 55% shareholding. The impression the
appellants’ counsel intended to portray was that the apparent
recommendations of the company actually named in the letters
notwithstanding, the ultimate beneficiary of the recommendations was
the third appellant. Therefore, according to them, the third
appellant had met the compulsory criteria.







[34] That contention
cannot stand the test of the law.It is trite that in commercial law a
corporate body has a personality separate from its
shareholders(Salomon v Salomon & Co.[1897] A.C. 22).
Thatprinciple is basic and beyond question. In that vein, Conger
Investments (Pty) Ltd was a separate legal persona with its own
capacity to sue and be sued. That means that if there was a
justiciable difference between the Tender Board and Conger
Investments (Pty) Ltd relating to any of the obligatory criteria, the
Tender Boardcould not sue Conger Investments (Pty) Ltd on the basis
of any of the three letters.It would equally be unable to sue
Independent Management and Properties because there was no privity of
contract between it and that company in as far as the tender issue
was concerned. In any event the tender documents required that the
tenderer himself/herself or itself (in this case Conger Investments)
must provide the Tender Bond, Performance Bond and Overdraft Facility
in its own behalf. However, since the letters quoted above did not
refer to Conger Investments, it is inescapable that the third
appellant must be adjudged to have failed to comply with the
compulsory, obligatory or main criteria. Consequently, the initial
determination by the Adjudication Committee was inevitable.







[35] In the instant case,
despite the clear stipulation of the tender documents, when the bids
reached the stage of the Director: Programmes and Quality Assurance,
the following events took place. After poring over all that had been
recommended, including comments and observations thereon made by the
Adjudication Committee, MrKabajani, the then Director,was evidently
unhappy with the adverse recommendation against the third appellant.
He therefore wrote the letter of 20th April 2009, to which
I have earlier made reference. In that letter he first acknowledged
that the third appellant and a company called Catering Solutions,
wereamong thirteen companies which had been disqualified on the basis
that they did not meet the compulsory criteria requirements, namely
the tender bond, performance bond, letter of good standing and
overdraft facility. The following are excerpts from MrKabajani’s
letter:







However the
two companies have all the three documents (i.e. documents relating
to the obligatory criteria) provided in their tender, but the ball of
contention (
sic)
is in whose name the documents were written. That the three documents
are written in the name of the shareholders and not in the name of
the tenderer seems to be the issue. The issue is therefore not that
they were not provided but in whose name they were written. This is
the matter for the Tender Committee to decide.







The business principle of the two
companies seeks change the entire catering history. In the life that
I have supervised hostel catering I have never come across an
attractive or lucrative social responsibility and social development
as that contained in the principles of these two companies. I read
through all companies that tendered and the business principle of the
two companies can be compared to none. . . . the two companies have
social responsibilities that make them move into hostels, habilitate
hostels by ploughing back funds through an established Trust Fund.







They have the best social development
principle that stands to support and serve the Ministry of Education
better than any other company that tendered.







The two companies are the cheapest in
four regions of Erongo/Kunene, Otjozondjupa, Hardap/Karas and
Omaheke.







RECOMMENDATIONS








  • That a legal advisor for the Ministry
    of Education, MrAdechaba be tasked to study the tender documents of
    seven (7) recommended companies and advice (sic) the Tender
    Committee on the specific wording of the Tender Bond, Performance
    Bond and Overdraft Facility as to whether these companies meet the
    stipulations of the tender document.









  • The Tender Committee has the
    jurisdiction to decide whether Catering Solutions and Atlantic
    (Food) Caterers are viable for inclusion based the on the entrenched
    social responsibility and business principles provided.









  • I recommend that a rechecking be done
    on the companies that have been recommended as many of them do not
    articulate government principles well enough. I trust that these
    comments will go a long way in assisting the process of warding
    (sic) the tender.








(Signed C.M.Kabajani)’







[36] In its consequential
letter, signed by all its three members on 24 and 27, the Ministry of
Education Tender Committee stated the following in paragraph 3.4
headed ‘SUCCESSFUL TENDERERS’ of its letter to the Tender
Board:







These are
the tenderers who complied with the main (compulsory) criteria as
well as the additional criteria and emerged as the most suitable
tenderers for the respective Catering Regions. In the final
allocation, the price comparative schedule was considered (Annexure
5).’







In the ensuing list of
the successful tenderers Atlantic Food Services was second and the
following was written about it:







Ohangwena/Oshikoto
Atlantic Food Services:



The tenderer was recommended for this
Catering Region because it has the lowest tendered man-day price in
the region. In addition, the tenderer has a clear social
responsibility, for example to create an Education Trust, support
OVCs, support disaster situations such as floods and provide
bursaries. Furthermore, the tenderer focuses on the empowerment of
women, youth and people with disabilities.’
(Italics
supplied for emphasis.)







[37] In their respective
heads of argument both Ms Van der Westhuizen and MrHeathcote have
emphasised that the overriding consideration which the Tender Board
took into account in awarding the tender to the third appellant was
the costing factor, namely the man-day price the third appellant
charged being the lowest. However, the sequence of events after the
interventionsbyMs Jantjies, the spokesperson of the SWAPO Women’s
Council Secretariat, on behalf of the third appellant, and MrKabajani
as noted above, irresistiblylead to the inference that the
Adjudication Committee changed its mind in favour of the third
appellant because it was prevailed upon through those interventions.







[38] I find this to be
the case because, in the first place, the factor of the third
appellant’s price being the lowest in the Ohangwena/Oshikoto
region was before the Adjudication Committee at the very time when it
disqualified the third appellant initially. Secondly, there is no
evidence that the third appellant resubmitted a substitute tender to
replace the earlier one which lacked the decisive compulsory
criteria, for which reason its tender was disqualified initially. It
is consequently doubtless that the comment which the Ministerial
Tender Committee made to the effect that all tenderers who ultimately
obtained tender awards had complied with the main (compulsory)
criteria, was not true in so far as the third appellant was
concerned. Thirdly, in the favourable reassessment on basis of which
the third appellant’s tender was reclassified as successful,
there was an unusual emphasis on social responsibility beinga
relevant tender attribute. I cannot avoid the inference
thatMrKabajani’s disposition as reflected in his letter of 20
April, supra, played no mean role in introducing that
attribute into the process. In any event, the rest of the tenderers
had not been given an intimation, through the tender documents, that
social responsibility would be a relevant and decisivefactor.







[39] In the final
analysis, it is quite clear, and I so hold, that the third
appellant’s tender was irregularly altered from being
disqualified, on proper and valid grounds, to being qualified, for
improper and invalid reasons. I am consequently fortified in further
holding that the decision by the learned trial Judge in reviewing and
setting aside the impugned administrative action was impeccable, save
that in arriving at it he used a wrong route, namely by basing it on
the failure to provide reasons and the alleged abdication by the
Tender Board of its statutory duty. I am satisfied that all the
evidence which the learned Judge could have used in coming to the
samedecision was starkly before him in the record of appeal. I
therefore uphold his decision.








[40] Another bone of
contention in this appeal concerns the finding by the Court below
that the Tender Board abdicated its statutory responsibility to
consider and make determinations on tenders.Without much ado, I am
supportive of the trial Judge’s finding that the Tender Board’s
letter dated 26 June 2009 addressed to the respondent lent credence
to that view. That is because that letter clearly stated that ‘the
Ministry of Education dealt with the entire tender process’
,
and that the Ministry ‘is in the best position to
answer’
tothe complaint letters from the respondent
expressing dissatisfaction with the manner in which its tender was
disqualified. Thestatement in that letter was unequivocal,but
unfortunately it was diametrically inconsistent with the deposition
of MrSchlettwein, who claimed in his affidavit that ‘at the
meeting of the Tender Board, the Board deliberated all documents and
recommendations and applied its mind to the award of tenders herein’.
If MrSchlettwein, who was at the time the Tender Board’s
chairman, is to be believed, why did he allow his own office to
attribute the entire tender process to the Ministry of Education? The
second appellant, by contradicting the assertion by his own office’s
unequivocal confession of abdication, was proverbially blowing hot
and cold. That is intolerable and I feel that the learned Judge in
the court below was entitledto attach an uncharitable epithet
toMrSchlettwein’s evidence regarding this issue.







[41] The only other
marginally contentious issue which requires attention relates to the
timing of the review application. The appellants have made it a plank
of attack against the respondent by highlighting the fact that
thedecision at issue was taken on 9 May 2009 and had inferentially
come to the knowledge of the respondent by 12 May, but that the
review application was not instituted until 2 September 2009. They
have cited irrefutable judicial authority which requires that persons
aggrieved by administrative action must not act dilatorily in
instituting judicial review proceedings.







[42] In the light of the
irregularity I have found to be incidental to the impugned
administrative action which resulted in gross injustice to the
respondent; the fact that the appellants have been unconvincingly at
pains to establish that the imagined delay occasioned a prejudice to
them; and the fact that the alleged delay itself was for only about
three months during which the second appellant was not readily
responsive to the respondent’s requests for reasons for the
disqualification of its tender - a fact showing that the second
appellant did not come to court with clean hands - this issue cannot
advance the appellants’ case any further. I am, in any event,
satisfied that the learned Judge in the court below dealt with it
adequately.







The Cross-Appeal



[43] Coming to the
cross-appeal, I construe the respondent’s prayer made in the
Court below and repeated in this Court, that the Ohangwena/Oshikoto
tender be awarded to itby the Court instead of being referred back
for reconsideration by the Tender Board, as a request for this Court
to act arbitrarily.Tender processing is a specialised calling in as
far as it entails examination of a variety of circumstances. In fact,
there is weighty judicial authority that, as a general rule, a court
will not substitute its own decision for that of the designated
functionary. That was, for example, the majority position this Court
took in Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd v
Minister of Environment and Tourism
2010 (1) NR 1 (SC) at
31F-G.Shivute,CJ, had the following to say:







When setting
aside a decision of an administrative authority, a review court will
not, as a general rule, substitute its own decision for that of the
functionary, unless exceptional circumstances exist. (
SA
Jewish Board of Deputies v Sutherland NO and Others
2004(4)
SA 368 at 390B
).







Thus, in Masamba v Chairperson,
Western Cape Regional Committee, Immigrants Selection Board and
Others
2001 (12) BCLR 1239 (C),the Cape Provincial Division of
the High Court of South Africa stated at 1259D-E:







The
purpose of judicial review is to scrutinise the lawfulness of
administrative action in order to ensure that the limits to the
exercise of public power are not transgressed, not to give the courts
the power to perform the relevant administrative function themselves.
As a general principle, a review court, when setting aside a decision
of an administrative authority, will not substitute its own decision
for that of the administrative authority, but will refer the matter
back to the authority for a fresh decision. To do otherwise would be
contrary to the doctrine of separation of powers in terms of which
the legislative authority of the state administration is vested in
the Legislature, the executive authority in the Executive and the
judicial authority in the courts.” ‘







I respectfully associate
myself with this dictum.



See also Ruyobeza and
Another v Minister of Home Affairs and Others
2003 (5) SA 51 (C)
at 63G-J.







Whether there are
exceptional circumstances justifying a court to substitute its own
decision for that of the administrative authority is‘in
essence. . . . a question of fairness to both sides.’
(Livestock
Meat Industries Control Board v Garda
1961 SA
342 (A) at349G
; Jewish Board of Deputies v
Sutherland NO and Others (supra); Erf One Six Seven Orchards CC v
Great Johannesburg Metropolitan Council (Johannesburg Administration)
and
Another 1999 (1) SA 104 (SCA) at 109C-E.)







Chief Justice Shivute
then went on to amplify that view by quoting the dictum of Hlophe J,
in University of Western Cape and Others v Member of the Executive
Committee for Health and Social Services and Others
1998 (3) SA
124 (C) at 131D-G, depictingthe rare cases in which a court
would be justified to substitute its own decision for that of the
administrative authority. HlopheJ in that case said:







Where the
end result is in any event a foregone conclusion and it would merely
be a waste of time to order the tribunal or functionary to reconsider
the matter, the Courts have not hesitated to substitute their own
decision for that of the functionary. The Courts have not also
hesitated to substitute their own decision for that of a functionary
where further delay would cause unjustifiable prejudice to the
applicant. Our Courts have further recognised that they will
substitute a decision of a functionary where the functionary or
tribunal has exhibited bias or incompetence to such a degree that it
would be unfair to require the applicant to submit to the same
jurisdiction again. It would also seem that our Courts are willing to
interfere, thereby substituting their own decision for that of a
functionary, where the Court is in as good a position to make the
decision itself. Of course the mere fact that a Court considers
itself as qualified to take the decision as the administrator does
not
per
se

justify usurping the administrator’s powers or functions. In
some cases, however, fairness to the applicant may demand that the
Court should take such a view.’







[44] This
Court is bound by its own decision in
Waterberg
Big Game Hunting Lodge Otjahewita (Pty) Ltd,supra.
In
any case I do not consider that the present case falls into the
category of those cases where a court should substitute its own
decision for that of the designated functionary. According to the
holding of the Court
a quo,
which I have endorsed, the impugned decision herein was not made by
the Tender Board. Therefore there is no apprehension of bias by the
Board against the respondent if the case is referred back; nor is it
the position here that this Court is in as good a position as the
Tender Board to make a decision.I therefore feel unpersuaded by the
respondent’s prayer in this connection.








  1. In the final analysis, I
    make the following orders:









  1. The appeal is dismissed.









  1. The cross-appeal is
    equally dismissed.









  1. The appellants are
    hereby mulcted in two-thirds (2/3) of the entire costs in this Court
    jointly and severally, the one paying the other to be absolved.









  1. This matter is referred
    back to the Tender Board to be reconsidered, but is hereby directed
    that the only tenderers to be reconsidered are the respondent and
    two companies, other than Atlantic Food Services, which
    submitted tenders for the Ohangwena/Oshikoto Region.

















________________________



CHOMBA AJA























________________________



MARITZ JA























________________________



MTAMBANENGWE AJA





































APPEARANCES







1
& 2NDAPPELLANT:



















Ms C E van der
Westhuizen


Instructed
by Government Attorney














3RDAPPELLANT:

















R Heathcote (with him
G Dicks)



Instructed by Ellis
Shilengudwa Inc.






RESPONDENT:



GColeman
(with him Ms E N Angula)








Instructed by
AngulaColeman Legal Practitioners