Onyeka Protection Services v Chairperson of Central Procurement Board of Namibia and Others (HC-MD-CIV-MOT-GEN 185 of 2021) [2021] NAHCMD 285 (8 June 2021)

R

REPORTABLE

EPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: HC-MD-CIV-MOT-GEN-2021/00185

In the matter between:

ONYEKA PROTECTION SERVICES APPLICANT

and

THE CHAIRPERSON OF THE CENTRAL

PROCUREMENT BOARD OFNAMIBIA 1^st RESPONDENT

THE CHAIRMAN OF THE REVIEW PANEL 2^nd RESPONDENT

OSHANA REGIONAL COUNCIL 3^rd RESPONDENT

AMUTANGA TRADING ENTERPRISES 4^th RESPONDENT

SIX THOUSAND SECURITY SERVICES 5^th RESPONDENT

NELITO INVESTMENTS 6^th RESPONDENT

LUDWIG SECURITY SERVICES 7^th RESPONDENT

ONAMANGONGWA TRADING SERVICES 8^th RESPONDENT

NAHOLE SECURITY SERVICES 9^th RESPONDENT

OMBALA SECURITY SERVICES 10^th RESPONDENT

CHIPPA TRADING ENTERPRISES 11^th RESPONDENT

TRIPPLE ONE INVESTMENT CC 12^th RESPONDENT

PELIO SECURITY SERVICES 13^th RESPONDENT

AFRICA ROYAL INVESTMENT CC 14^th RESPONDENT

OMEYA INVESTMENT 15^th RESPONDENT

RUBICON SECURITY SERVICES 16^th RESPONDENT

NAMIBIA PROTECTION SERVICES PTY LTD 17^th RESPONDENT

KELELA SECURITY SERVICES 18^th RESPONDENT

EXTRA DEFENCE PROTECTION SERVICES 19^th RESPONDENT

CHIEF NANGOLO SECURITY SERVICES 20^th RESPONDENT

SHIKUVULE TRADING CC 21^st RESPONDENT

S.J FAMILY INVESTMENT CC 22^nd RESPONDENT

SPLASH INVESTMENT CC 23^rd RESPONDENT

ZENI INVESTMENT CC 24^th RESPONDENT

ONNEPY PROTECTION SERVICES 25^th RESPONDENT

JARDE SECURITY SERVICES 26^th RESPONDENT

OMLE SECURITY SERVICES 27^th RESPONDENT

MAYFIELD PROTECTION SERVICES 28^th RESPONDENT

WINDHOEK SECURITY SERVICES 29^th RESPONDENT

BERTHA SECURITY SERVICES 30^th RESPONDENT

WAAKALI SECURITY SERVICES 31^st RESPONDENT

C.I.S SECURITY SERVICES 32^nd RESPONDENT

OMAMBUNDU SECURITY SERVICES 33^rd RESPONDENT

P.I.S SECURITY SERVICES 34^th RESPONDENT

Neutral citation: Onyeka Protection Services v The Chairperson of the Central

Procurement Board of Namibia and Others (HC-MD-CIV-MOT-GEN-2021/00185) [2021] NAHCMD 285 (8 June 2021)

Coram: PARKER AJ

Heard: 19 May 2021

Delivered: 8 June 2021

Flynote: Administrative law – Administrative action – Review of decision of administrative body (Review Panel) responsible for granting statutory domestic remedy – In terms the Public Procurement Act 15 of 2015 – Review application by applicant rejected opening the way for implementation of Review Panel’s findings by the Procurement Board of Namibia – Applicant becoming one of a number of unsuccessful bidders for two tenders – In a r 66 (I) (c)-notice Review Panel informing court that any decision by this court would be academic – Counsel for Review Panel disclosing to court that first tender had been cancelled and contract of employment had been entered into between the public authority employer and successful bidder – Court accepting disclosures by counsel on basis of counsel’s duty to court as officer of court to make such disclosure – Consequently, court dismissing application.

Summary: Administrative law – Administrative action – Review of decision of body (Review Panel) responsible for granting statutory domestic remedy – In terms of the Public Procurement Act 15 of 2015 – Review Panel rejecting applicant’s review application to review Review Panel’s findings – Way opened for the Procurement Board of Namibia to award two tenders to the successful bidder – Applicant praying court to review Review Panel’s findings – In r 66 (1) (c)-notice Review Panel stating that first tender had been cancelled and contract of employment had been entered into between the third respondent employer and the successful bidder – Counsel for Review Panel disclosing to court that first tender had been cancelled and contract of employment concluded between public authority employer and successful bidder – Court rejecting applicant’s counsel’s argument that in the absence any answering affidavit to that effect court should reject counsel’s disclosures and accept applicant’s affidavit and grant the order for review sought – Court rejecting counsel’s argument and accepting facts disclosed by second respondent’s counsel on the basis that as officer of court counsel she had the duty to inform the court of any matter which is material to the granting or refusal of the application – Consequently, court dismissing application.

___________________________________________________________________

ORDER

___________________________________________________________________

1. The application is dismissed.

2. There is no order as to costs.

3. The matter is considered finalised and is removed from the roll.

___________________________________________________________________

JUDGMENT

___________________________________________________________________

PARKER AJ

[1] We are confronted once again with another challenge in the tender business which has now become a big industry of its own in the country. The tender award challenges have now become humdrum.

[2] Be that as it may, it becomes our duty to always entertain such applications and do justice to the parties. The notice of motion in the present matter contains precise description of the parties. I need not repeat them here. Suffice to mention that third respondent is the employer in the two tenders: No. NCS/ONB/ONARC-027/2020/2021, and NCS/ONB/ONARCDEAC-022/2020/2021, which are the subject matter of this case. The first respondent’s body is the central organization in terms of the Procurement Act 15 of 2015 for the procurement of goods and services by public authorities. The second respondent is the chairperson (Chairman) of the statutory domestic remedy body of the Central Procurement Board whose chairperson, as I have indicated, is the first respondent. Applicant is one of the unsuccessful bidders.

[3] In the exercise of its statutory powers, the body of second respondent, that is, the Review Panel, rejected applicant’s application to review the Review Panel’s adverse findings. The Review Panel communicated those findings to applicant on 6 May 2021. Applicant has brought the instant application to review and set aside the Review Panel’s decision and remit it to that body to determine afresh applicant’s review application; and applicant prays the court to hear the application on the basis that it is urgent.

[4] Second respondent has moved to reject the application. It is remembered that the matter was set down for 17 May 2021 for hearing but was postponed to 19 May 2021. Meanwhile, second respondent pursued its opposition not by way of r 66 (1) (a) and (b) of the rules of court, but by way of r 66 (1) (c) by raising questions of law only.

[5] In their r 66 (1) (c)-notice, the Review Panel places before the court these distinct issues: (1) an academic relief sought, (2) lack of urgency, and (3) improper procedure: non-compliance with r 76 of the rules of court. For plainly obvious reasons, I shall consider the notice in respect of issue (1) of the notice first.

[6] In her oral submission to the court, Ms Ndungula disclosed to the court that as respects tender no. NCS/ONB/ONARC-027/2020/2021, which was for the provision of security services for third respondent, that tender was cancelled on 17 May 2021; and as respects tender no. NCS/ONB/ONARD-DEAC-022/2020/2021 for the provision of security services for third respondent’s Education Directorate, the contract in respect thereof was awarded on 30 March 2021 and the contract with the employee (that is, the successful bidder) was concluded on 14 May 2021. If Ms Ndungula’s submission was accepted, that would be the end of the matter; for it is trite the court does not grant orders that are academic.

[7] The submission on the other way by Mr Diedericks, counsel for applicant, is that since second respondent has not presented any evidence by way of an answering affidavit, the court should reject the statements in the r 66 (1) (c)-notice that were articulated in elucidation by Ms Ndungula in her oral submission, and determine the application on the basis of applicant’s founding papers. With respect, I should say, Mr Diedericks oversimplifies the issue, and he has an unsurmountable obstacle in his way. Counsel overlooks the principle that it is the duty of counsel to the court in judicial proceedings ‘to inform the court of any matter which is material to the granting of an application, and of which counsel is aware’. (Schoeman v Thompson 1927 WLD 282 at 283; see also Eric Morris Technique of Litigation 3^rd ed (1985) at 40-41 on ‘The Duty of Disclosure to the Court’.) Thus, in virtue of the foregoing Schoeman v Thompson principle, I hold that ‘[t]he court will always accept and act on the assurance of counsel in any matter heard in court….’ (Eric Morris Technique of Litigation at 41).

[8] Anybody who is familiar with the court would, if they are minded to do so, attest to the fact that on occasions too many to count, the court has accepted and acted on disclosures by counsel in motion proceedings without demanding proof thereof by affidavit. Such disclosures by counsel do not constitute inadmissible hearsay evidence. In the instant case, the matter Ms Ndungula disclosed to the court as officer of the court and pursuant to her duty to the court is material (see Schoeman v Thompson, loc cit, and has probative value. It is relevant matter; and it applies to the case at hand and does contribute to the determination of the matter the court is seized with (see Vaatz v Law Society of Namibia 1990 NR 332 (HC).)

[9] Indeed, that matter is material and sufficient, and second respondent can rely on it to resist the application in the circumstances of the case. Therefore, the fact that the matter placed before the court by Ms Ndungula is not presented to the court in an affidavit of her client, the second respondent, matters tuppence: It is of no moment, considering the circumstances of the case and the relief sought by the applicant. Different consideration would, of course, arise, if applicant’s founding and replying papers were capable of contradicting, or putting in dispute the veracity of, the matter placed before the court by Ms Ndungula.

[10] Based on these reasons, it is otiose to consider any other issues from both sides of the suit. And it will, in virtue of what I have discussed previously, make no sense – none at all – if the court were not to consider the matter now; and so, whether urgency is proved or not is plainly inconsequential.

[11] Ms Ndungula submitted that the cancellation of the first tender and the conclusion of contract of employment in respect of the second tender had been communicated to applicant. Mr Diedericks submitted that it was not proper for the third respondent to have acted as such after the application had been filed. That may be so, but it remains true that any order the court makes now to upset the decision of the Review Panel would undoubtedly be academic, as Ms Ndungula submitted. In that regard, it is important to note this. While exhausting domestic statutory remedy, as it did, applicant could have approached the court on the basis of urgency to have the implementation of the Review Panel’s findings suspended pending the review thereof. I accept Ms Ndungula’s submission on the point. Applicant failed to do that, much to its detriment. Applicant has itself to blame for the predicament in which it finds itself. It is clearly too late in the day to review the findings of the Review Panel.

[12] It remains to consider the matter of costs. What the court can do in the circumstances, including the cancellation of the first tender and the conclusion of the employment contract in respect of the second tender when it would appear the instant application had been instituted when those acts were carried out, is to refuse to grant costs in favour of second respondent, even though second respondent has been successful.

[13] In the result, I make the following order:

1. The application is dismissed.

2. There is no order as to costs.

3. The matter is considered finalised and is removed from the roll.

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C PARKER

Acting Judge

APPEARANCES

APPLICANT J DIEDERICKS

Instructed by Shakumu and Co. Inc., Windhoek

1^ST RESPONDENT A NDUNGULA

Instructed by Office of the Government Attorney, Windhoek