Court name
Supreme Court
Case number
SA 52 of 2011
Case name
United Africa Group (Pty) Ltd v Chairperson of the Tender Board of Namibia and Others
Media neutral citation
[2014] NASC 21
Judge
Mtambanengwe AJA










REPORTABLE


CASE
NO: SA 52/2011






IN
THE SUPREME COURT OF NAMIBIA






In
the matter between:


UNITED
AFRICA GROUP (PTY)
LTD.................................................................................Appellant


and






CHAIRPERSON
OF THE TENDER BOARD


OF
NAMIBIA................................................................................................................First
Respondent


MINISTER
OF LABOUR AND SOCIAL
WELFARE.........................................Second
Respondent


JOHN
AND PENNY GROUP OF COMPANIES (PTY)
LTD................................Third
Respondent


PATRIOTIC
PAYMASTER SERVICES (PTY)
LTD...........................................Fourth
Respondent


KUJO
INVESTMENT (PTY)
LTD.............................................................................Fifth
Respondent


ANTHER
INVESTMENT
CC....................................................................................Sixth
Respondent


EPUPA
INVESTMENT TECHNOLOGY (PTY)
LTD
...........................................Seven
Respondent






Coram:
MARITZ JA, MAINGA JA and MTAMBANENGWE
AJA


Heard:
6 March 2013


Delivered:
11 November 2014


APPEAL
JUDGMENT


MTAMBANENGWE
AJA (MARITZ JA and MAINGA JA concurring):


[1]
The appeal in this matter is against the
judgment of the High Court (per Unengu AJ) dismissing with costs the
appellant’s review application.  The appellant, United
Africa Group (Pty) Ltd (United Africa), sought to review and set
aside an award by the Tender Board of Namibia (the Board) of Tender
A6-1/2010: ‘Cash Payment of Basic State Grants, Allowances to
Beneficiaries’ to the seventh respondent, Epupa Investment
Technology (Pty) Ltd (Epupa) on 19 November 2010.


[2]
It was contemplated that the monthly
aggregate of the basic State grants and allowances to be handed to
the successful tenderer for distribution would amount to N$55
million. For that reason, the conditions subject to which tenders
were invited required assurances about the financial viability of
prospective tenderers.   Clause 28 of the ‘Terms and
Conditions of Tender Contract or Order’ provides as follows:


28.
Financial Viability


A
letter of good standing from the Bank indicating financial viability
of the Contractor to deliver services as well as a written guarantee,
the value of which shall be 10% of the monthly aggregate (N$55 000
000,00) of Basic State grant and allowances handed into the
contractors custody, from the financial institution will be
required.’


Pursuant
to clause 28, United Africa and Epupa both sought and obtained
letters from First National Bank (FNB) dated 16 September 2010
regarding their financial standing, which they submitted as part of
their respective tenders. The letter submitted by United Africa
reads:


Letter
of Intent to Issue Guarantee 25911898


Contractor
United Africa Group (Pty) Ltd, Reg. No. 870192


Contracting
Authority: Ministry of Finance


Tender
No. A6-1/2010


We
have been informed by our customer, United Africa Group (Pty) Ltd,
that they are tendering to secure the contract for the rendering of
service to the Government to effect payments of basic state grants,
allowances to beneficiaries for the period 1 December 2010 to 30
November 2015 and that a Performance Guarantee for the amount of N$5
500 000.00 (Five Million Five Hundred Thousand Namibian Dollars)
representing 10% of the amount of N$55 000 000.00 (Fifty Five Million
Namibia Dollars),
will be required, if
the Tender is awarded to, United Africa Group (Pty) Ltd
.


We,
First National Bank of Namibia Limited, Windhoek Corporate Branch . .
. hereby confirm
without further
obligation or liability on our part, that we intend issuing the
required Performance Guarantee should the abovementioned tender be
awarded to United Africa Group (Pty) Ltd.


This
is a Letter of Intent only, and may not be used for any purposes
other than for information purposes.  This Letter of Intent will
become null and void Ninety (90) days after the closing date of the
Tender (21 September 2010)
or upon award
of the abovementioned contract to United Africa Group (Pty) Ltd
.,
or to any other person or company.’ (My emphasis.)


The
letter submitted by Epupa was issued on the following terms:


Letter
of Intent to Issue a Guarantee


Tender
no. A6-1/2010


Rendering
of services to government to effect cash payment of basic state
grants, allowances to beneficiaries for the period 1 December 2010 to
20 November 2015


We,
First National Bank of Namibia Limited, . . . undertake herewith on
behalf of Epupa Investment Technology (Pty) Ltd Reg no. 2004/493, to
supply the Ministry of Finance with a Performance Guarantee of
N$5,500,000-00 being 10% of the contract amount for the
above-mentioned project,
if the tender
is awarded to the Contractor.



  • This
    is a Letter of Intent only, and may not be used for any purposes
    other than for information purposes.


  • This
    undertaking is subject to Epupa Investment Technology (Pty) Ltd
    meeting the Bank’s Credit Criteria.


  • This
    undertaking is neither negotiable nor transferable.


  • This
    undertaking shall remain in full force and effect until 17 December
    2010, or notice is received that the Tender was not awarded to Epupa
    Investment Technology (Pty) Ltd, whichever event occurs first, after
    which date this undertaking shall expire


  • This
    Letter of Intent will become null and void upon issuance of the
    abovementioned guarantee.’ (My emphasis.)



[3]
Antecedent to the award of the said tender,
the Tender Committee (the Committee) of the third respondent, the
Ministry of Labour and Social Welfare, undertook certain preliminary
steps that culminated in the Committee identifying United Africa and
Epupa as the only two of the six companies that had submitted bids,
which had met all the conditions and specifications set out in the
tender documents and whose prices were adjudged to be fair and
reasonable. Of the two, the prices tendered by Epupa for the services
to be rendered were the lower.


[4]
After the two companies had thus been
identified, both were invited to make presentations to the Committee
about their operational plans to execute the requested services in
the event that the tender would be awarded to them. This was in
accordance with clause 13 of the ‘Additional Instructions to
Tenderers,’ which reads as follows:


13.
Only Tenderers that have met all the conditions and specifications of
the Tender will be invited to a briefing meeting within fourteen days
after the closing date of tender at which an opportunity will be
given to them to present their operational plan, the type of
equipment anticipated to be used and to raise any questions or seek
clarification on the bid documents.’


Both
companies made their respective presentations on 11 October 2011. At
the conclusion thereof, each was told that the letters of good
standing ‘had to be followed up by an unconditional letter from
the bank confirming that the letter of intent would, in the event of
the tender being awarded, be converted into a guarantee’.


[5]
After the presentations, the Committee on
12 October 2010 recommended to the Board that it should consider
Epupa as its first choice and United Africa as its second in the
award of the tender.  The relevant minutes of the Committee
reflect that both companies met the tender conditions and
specifications, and that the prices quoted by the two companies were
fair and reasonable.


[6]
The final recommendation of the Committee
to the Board, which was subsequently made, reversed the initial order
of preference. This followed upon a request made by the Committee
that the two tenderers should provide confirmation by the bank that
the bank would issue performance guarantees. FNB reportedly furnished
such a confirmation in respect of United Africa whereas it declined
to issue a similar confirmation in respect of Epupa. The bank’s
reasons for refusing to issue such a confirmation in respect of Epupa
are not stated.


The
confirmation letter by FNB to the Tender Board in respect of United
Africa dated 11 October 2010 reads as follows:


Letter
of Intent to Issue Guarantee


Contractor
United Group (Pty) Ltd, Reg. No. 87/0192


Contracting
Authority: Ministry of Finance


Tender
No. A6-1/2010


With
reference to our Letter of Intent issued 16 September 2010 in terms
of the above tender application.


Please
be informed that on awarding the contract to United Africa Group
(Pty) Ltd, we will issue the required guarantee within 24 hours in
substitution of the letter of intent referred above.  The
wording of such a guarantee must be acceptable to the bank.


Kindly
provide us with the wording of the guarantee to enable us to prepare
the guarantee in the meantime.’


[7]
On 29 October 2010, the Board nevertheless
decided to award the tender to Epupa. The minutes of the Board’s
meeting on that day read as follows:


Recommendation:
That approval be granted for the tender to be awarded to Messrs
United Africa Group. The offer is the second lowest and to
specifications.  The price is fair and reasonable.


Discussion:


1.
The Board wanted to know why the lowest qualifying tenderer Messrs
Epupa Investment was not recommended.  It was explained that the
bank could not confirm a bank guarantee to the company after the
letter of intent was provided.  Close scrutiny of the tender
documents and submission revealed that both companies (United Africa
Group and Epupa Investment) are to specification and are in
possession of a letter of intent from First National Bank.


2.
The Board noted that the letter of intent by the financial
institution is sufficient proof that the bank will provide the
guarantee once the tender is awarded to Messrs Epupa Investment. 
It was explained that the Ministry contacted the bank regarding a
confirmation of the guarantee of Messrs Epupa Investment and did not
obtain it.  Some members expressed the fear that Messrs Epupa
Investment might fail to obtain a bank guarantee after the award. 
It was argued that this fact is not stated anywhere in the documents
and the recommendation is not in the best interest of equal wealth
distribution.


3.
The Board was not convinced [of the Committee’s] motivation [in
not recommending] the lowest qualifying tenderer, Messrs Epupa
Investment, and went against the Ministry’s recommendation.


Resolved:
Approved to Messrs Epupa Investment.’


[8]
United Africa challenged the award of the
tender by the Board to Epupa on a number of grounds:


(a)
Epupa should have been disqualified in the
first place because the letter of good standing supplied on its
behalf by FNB was fatally flawed;


(b)
Epupa had not provided a performance
guarantee when the Board awarded the tender to it on 29 October;


(c)
Epupa did not provide a letter of
confirmation from FNB that the bank would issue a performance
guarantee as requested at the end of its presentation of its
operational plans;


(d)
When the Board considered the two tenders
it erred because it did not appreciate the difference between the two
letters of good standing, i.e. that on behalf of United Africa and
that on behalf of Epupa; and


(e)
The Board also erred in that it took as
decisive a factor that it was legally impermissible to take into
account.


I
proceed to deal with these issues.


[9]
The argument about the letters of good
standing, advanced almost
ad nauseum,
particularly in the appellant’s replying affidavit, is premised
on the assertion that FNB’s letter on behalf of Epupa is
conditional and therefore does not qualify as a letter of good
standing required in terms of clause 28 of the ‘Terms and
Conditions of Tender Contract or Order’. By contrast, the
letter presented on behalf of United Africa is not conditional.
First, I would observe that it needs no research to understand that a
condition need not necessarily be expressed in words.  However,
an examination of the two letters shows that FNB stated expressly the
condition on which the bank was prepared to issue the required
performance guarantees. It stated –


(a)
in respect of United Africa:


We
. . . hereby confirm, without further obligation or liability on our
part, that we intend issuing the required Performance Guarantee
should the abovementioned tender be
awarded
to United Africa Group (Pty)
Ltd’.


(b)
in respect of Epupa:


We
. . . undertake herewith on behalf of Epupa Investment Technology
(Pty) Ltd Reg. No. 2004/493, to supply the Ministry of Finance with a
Performance Guarantee of N$5 000 000,00 being 10% of the contract
amount for the above-mentioned project,
if
the tender is awarded to the contractor
.’
(My emphasis.)


The
only difference between the two letters is that the bank added the
following condition to the second letter:


This
undertaking is subject to Epupa Investment Technology (Pty) Ltd
meeting the Bank’s Credit Criteria.’


The
addition of that condition does not, in my opinion, make any
difference, as it is a condition normally implied in any such
transactions by a bank.


In
any case, Mr Frank, appearing on behalf of United Africa, conceded in
answer to a question from the Bench that the letter from FNB on
behalf of United Africa was also conditional. In the result I find
that this argument cannot be sustained. It was left to the Board to
determine on a reasonable and rational basis whether the express or
implied conditions subject to which the letters were issued were
acceptable, given the underlying purpose for the requirement.


[10]
As regards the argument that Epupa had not
provided the performance guarantee required in terms of clause 28 of
the conditions of tender when, on 29 October 2010, it was awarded the
tender by the Board, I fail to see any rational basis for such an
argument. The clause stipulates that ‘a written guarantee . . .
from a financial institution will be required’. It does not say
when it will be required. In my view, it was therefore left to the
Board to determine the date on which it should be provided. It is
true that Epupa did furnish that guarantee on 16 November 2010, i.e.
some days after the award. It did so on request and the guarantee was
issued by Bank Windhoek on 1 November 2010. When United Africa
complained about the award of the tender to Epupa and threatened to
approach the High Court to have the award set aside, the Board sought
advice on this issue from the Attorney General. I shall refer to the
advice consequently given by the Attorney General here below.


[11]
For present purposes, it is only pertinent
to consider the following: when clause 28 of the tender conditions
required that a written guarantee be furnished by a financial
institution, ‘the value of which shall be 10% of the monthly
aggregate (N$55 000 000,00) of basic state grant and allowance handed
into the contractors custody,’ when must the written guarantee
be given? Is United Africa correct to argue that Epupa should not
have been awarded the tender because its performance guarantee was
given by Bank Windhoek only after the tender was awarded?


[12]
Firstly, when we look at all the letters
written by FNB to the Board on this aspect of the matter, we see that
FNB clearly understood and appreciated that the written guarantee had
to be given after the award of the tender on behalf of the successful
tenderer. I have underlined the words ‘if the tender is awarded
to United Africa Group (Pty) Ltd’, ‘should the
abovementioned tender be awarded to United Africa Group (Pty) Ltd,’
‘upon award of the abovementioned contract to United Africa
Group (Pty) Ltd,’ ‘if the tender is awarded to the
contractors’ and ‘on awarding the contract to United
Africa Group (Pty) Ltd’ in the letter quoted above, to
demonstrate the understanding and appreciation of the bank of this
fact.  Secondly, both in the ‘Terms and Conditions of
Tender Contract or Order’ and in the ‘General Conditions
of Tender, Contract or Order,’ ‘contractor’ is
defined as:


Any
person or persons or anybody of persons corporate or not incorporated
whose tender has been accepted by the state’.


This
definition, when read together with the Special Conditions of the
tender quoted hereunder, puts beyond any shadow of doubt that it was
contemplated that, only on acceptance of its tender, would a tenderer
be expected or called upon by the Board to furnish the performance
guarantee. Accordingly, the answer to the second question posed above
is that Epupa could not be disqualified on the basis contended for by
the appellant.


[13]
The eventual recommendation of the
Committee to the Board, that is, that the tender be awarded to United
Africa, was based on the fact that Epupa did not get from FNB the
confirmation letter requested by the Committee at the end of Epupa’s
and United Africa’s presentation of their respective
operational plans. Epupa obtained a letter to the same effect on 19
October 2010 from the Development Bank of Namibia and submitted it to
the Committee on the same date. This letter, delivered to the
Committee on the same day as it made its final recommendation to the
Board, was not tabled before the Board. The Board, however, did not
follow the Committee’s recommendation. The discussions of the
Board leading to its decision to award the tender to Epupa are
reflected in the Board’s minutes already referred to in para
[7] of this judgment. The confirmation letter in favour of United
Africa has also been referred to, in para [6] of this judgment. As I
said earlier, when United Africa complained to the Board and
threatened to take the matter to the High Court, the Board sought the
advice of the Attorney-General. The advice given is reflected in the
minutes of the Board’s meeting on 5 November 2010. A section of
the minutes relating to the discussion of Tender A1/6-1/2010 reads as
follows:


MINUTES
42/2010 HELD 5 NOVEMBER 2010


3.1.3
TENDER A1/6-1/2010 MINISTRY OF LABOUR AND SOCIAL WELFARE: 
RENDERING OF SERVICE TO GOVERNMENT TO EFFECT CASH PAYMENTS OF BASIC
STATE GRANTS AND ALLOWANCES TO BENEFICIARIES


The
Board was informed that soon after the award of this tender on Friday
29 October 2010, the two tenderers involved knew the outcome of the
meeting. Consequently a letter from Messrs. United Africa’s
lawyers was received in which allegations are made that the awarded
company Messrs Epupa Investec did not comply with specifications as
they did not submit a written guarantee.  The Board was also
informed that because of that, a letter was written to the Attorney
General seeking legal opinion.


The
Board wanted to know why the notification was delayed and it was
explained that it was a measure instituted by the Secretariat after
the issue of the railway tender, to have minutes of the previous
meeting approved before successful tenderers are notified.  Due
to the urgency of the matter Mr Sacky Shangala was requested to brief
the Board on the way forward.  He informed the Board that a
written guarantee was not part of the specifications and that this
condition was communicated to both tenderers afterwards.  He
also noted that strictly speaking the tenderer of Messrs United
Africa also did not provide a guarantee as stipulated by a letter of
intent which does not constitute a guarantee.


Both
tenderers supplied a letter of intent from the same financial
institution.  The legal opinion is thus: both companies did not
comply and the Board could therefore condone any of the two tenderers
and award.  The Board decided to uphold its award to Messrs
Epupa Investec and to condone the non-compliance as advised by the
Attorney-General.’


[14]
I agree with the Attorney-General’s
advice when he said:


.
. . a written guarantee was not part of the specifications and that
this condition was communicated to both tenderers afterwards’.


The
condition does not appear in any of the tender documents referred to
above nor can it be said to arise from the wording of clause 28 of
the ‘Terms and Conditions of Tender, Contract or Order’.


[15]
The special conditions of tender required
all tenderers to undertake in the form of a letter to the Board that
-


1.
If the tender is accepted either wholly or in part, I/we undertake to
enter into a contract, embodying all the terms and conditions of the
tender and acceptance, and further to provide security to be in the
form of a guarantee by a bank or approval guarantee corporation or
the deposit of cash or government securities on approved municipal
stock in negotiable form.


2.
The tenderer agrees that if:


i)


ii)


iii)
when called upon to do so, he fails to give
the Government satisfactory security for the due fulfilment of the
contract, or


iv)
when called upon to fulfil the contract he
fails to do so,


the
Government may, in addition to any other remedies it may have, agree
to the withdrawal of his tender or cancel the contract that may have
been entered into between himself and the Government and he will then
pay to the Government any additional expense incurred by the
Government having either to accept any less favourable tender or if
fresh tenders have to be called, the additional expenditure incurred
by the invitation of fresh tenders and by the subsequent acceptance
of any less favourable tender.


3.
The Government shall have the right to recover such additional
expenditure by setting off any money which may be due or become due
to the tenderer under his or any other tender or contract or against
any guarantee or deposit that may have been furnished by or on behalf
of the tenderer for the due fulfilment of this or any other contract
and, pending the ascertainment of the amount for such additional
expenditure to retain such moneys, guarantee or deposit as security
for any loss the Government may sustain by reason of the tenderer’s
default’.


As
they were obliged to do, all the tenderers signed this undertaking.
This special condition means, in my opinion, that any tenderer whose
tender was accepted could provide the performance guarantee required
in terms of clause 28 by a deposit of cash or a deposit of Government
securities or approved municipal stock in negotiable form.


[16]
Other criticism of the Tender Board’s
decision


In
para 35.5 of appellant’s founding affidavit the deponent states
that it appears from the minutes of the Board on 19 October 2010:


That
the primary motive of the decision – a missing bank guarantee
notwithstanding – was the best interest of equal wealth
distribution’.


It
says in para 31 thereof:


I
have been advised and respectfully submit:


31.1
The requirement for a guarantee could not be dispensed with by the
Board. The Board thus acted outside the scope of their powers and did
not understand the legal basis of the exercise of their discretion.


31.2
The Board took irrelevant matters into consideration while ignoring
relevant considerations.


31.3
Whereas the price of tenders is relevant, the “best interest of
equal wealth distribution” has no foundation in fact or law and
is irrelevant to the discretion that had to be exercised.


31.4
The reference to “the best interest of equal wealth
distribution” is indicative of improper purpose or ulterior
motive.


31.5
The Board had no apprehension for the relevant decisional referents.


31.6
That the decision is distorted by an error as to the Board’s
statutory powers in condoning Epupa’s non-compliance.


31.7
Dispensing with the requirement relating to the unconditional written
guarantee the Board contravened sec. 15(2)(
a)
and 15(3)(
a)
of the Tender Board of Namibia Act, No. 16 of 1996’.


In
his written heads of argument, Mr Frank expanded on these submissions
on behalf of the appellant when he turned to the merits, particularly
when he submitted in para 39:


Furthermore,
to award the tender to the seventh respondent and not the applicant
because to have awarded it to the applicant would not be in the “best
interest of equal wealth distribution” also shows a failure on
the side of the Board to appreciate the extent of its discretion as
the criteria used by the Board is not sanctioned by the Tender Act or
any other law and was therefore not a legally permissible factor when
taking their decision’.


I
confine my comments on this aspect of Mr Frank’s criticism
because I have already dealt with and dismissed his submissions
regarding the letters of intent and the guarantee etc. I found these
arguments unsustainable.


Before
addressing the merits, Mr Frank refers to various sections of the
Tender Board of Namibia Act 16 of 1996 (the Act) including ss 15(5)
and (6), which provide:


(5)
In comparing tenders the Board shall give effect to the price
preference policy of the Government to redress social, economic and
educational imbalances in a democratic society and to encourage
industrial and commercial interests in Namibia.


(6)
If the Board does not accept the lowest tender or tenders from among
all the tenders submitted to it, the reasons for not accepting the
lowest tender or tenders shall be kept on record by the Board.’


The
effect of ss 15(5) and (6) is that in general the lowest tender must
be accepted unless there are reasons to the contrary. Such reasons
may include the price preference policy of the Government to redress
social, economic and educational imbalances and to encourage
industrial and commercial interests in Namibia.


Furthermore,
Regulation 7 of the Act provides:


(i)
In comparing tenders the Board shall give effect to the policy of
Government referred to in section 15(5) of the Act’.


In
Epupa’s answering affidavit, the deponent thereof Ms Loini
Nyanyukweni Kalomo, Epupa’s managing director, explained ‘equal
wealth distribution’ as follows:


The
fact that the Tender Board mentioned equal wealth distribution does
not make its decision reviewable.  As far as I am concerned it
has a sound foundation in fact because it is common knowledge that
applicant is an extremely wealthy company with equally wealthy
shareholders.  It has a variety of lucrative contracts all over
Namibia including a bunkering agreement with De Beers Marine Namibia
worth millions.  Seventh respondent on the other hand is a
small
wholly owned Namibian company with nine previously disadvantaged
shareholders (six of which are women)

of modest means’. (My emphasis.)


The
additional instructions to tenderers provide in ss 8 and 9:


8.
The Tender Board reserves the right to accept any or none of the
bids.  The lowest or sole tender will not necessarily be
accepted.  The tender price linked to the quality of service
will however play a decisive role.


9.
The Tender is subject to the Tender Board Regulations as published in
the Official Gazette of Namibia Notice 237 of 12
th
September 1996 (Act 16 of 1996) and subsequent amendments.’


[17]
When the Board made its decision on 29
October 2010, its members would have obviously been aware of these
provisions in the Act, the Regulations and the various tender
documents.  Furthermore, if the minutes of the Board’s
discussions are read in their entirety, they show that the Board was
quite concerned about the Committee’s motivation in not
recommending Epupa notwithstanding its tender being the lowest.
Pricing is not a matter the Board took lightly; it is mentioned twice
in the minutes in this relation to this issue.


[18]
Cash Paymaster Services (Pty) Ltd v
Eastern Cape Province and Others
1999
(1) SA 324 (CkH) emphasises the importance of pricing factors in
tender board matters at 351G:


The
task of the tender board has always been and will always be primarily
to ensure that 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 government simply, on a basis of policy determination, to enter
into contracts for whatever it required without intervention of a
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’.


and
at page 360A:


Tender
boards, more than any other government tribunals, have a particular
responsibility in this regard.  The values of annual contracts
nationally probably run into billions of rands. If tender boards do
not recognise that their primary task is the 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’.


[19]
For the appellant to try to turn into a
principle an ineptly worded phrase that appears in the context (in
para 2 alone) of an argument presented by ‘some members’
at the meeting, is completely unwarranted, especially as it is clear
from para 3 of the minutes that the principal consideration that
informed the decision of the Board was the more favourable pricing of
the services by Epupa. The use of the phrase in the course of an
argument at the Board’s meeting can clearly be seen as a mere
clumsy articulation of pricing preferences stated not only in the
tender documents but also in the governing Act and Regulations. In my
opinion, it was not necessary to refer to the preferences to justify
the acceptance of Epupa’s tender because it was the lower of
the two. It is the latter consideration that swayed the decision of
the Board. The appellant’s reliance on an ineptly worded
argument presented by ‘some members’ at the meeting for
its submission that the Board had acted with ulterior purposes when
it awarded the tender to Epupa is wholly unpersuasive and must be
dismissed without further ado.


[20]
Before concluding, I must express the
court’s appreciation of the appellant’s counsel’s
industry in putting before the court many authorities and the
principles derived from them. I intend no disparagement of counsel’s
efforts by saying that I have looked at all the cases referred to
but, other than those bearing on the authorities already cited, I
find none of the principles addressed therein applicable to the facts
and circumstances of this matter.


[21]
In the result, the appeal should be
dismissed with costs including the costs of one instructing counsel
and one instructed counsel.  I so order.


________________________


MTAMBANENGWE
AJA


________________________


MARITZ
JA


________________________


MAINGA
JA


APPEARANCES
















APPELLANT




T J Frank SC
(with G Dicks)


Instructed
by Theunissen, Louw & Partners






SEVENTH
RESPONDENT




G B Coleman


Instructed
by AngulaColeman Legal Practitioners