The facts that emerged from Judge Harald Geier’s decision read like a good governance nightmare.
Decisions that should have been made by a committee were made by one person only. Two farms were allocated to a business entity that had not even applied for them and whose founding documents, discussed during the first round of considerations, indicated that it did not qualify. When it appeared that it could jump the queue and be considered after all, these documents were hastily amended, with the addition of two women to satisfy the gender requirements for allocation.
Passions Culinary and Hospitality Institute, whose award of the two farms was set aside by the court, also brought in a prominent figure from Namibia’s ruling party in an apparent bid to add lustre to its application.
The two farms put up for allocation were advertised at the end of 2016. An evaluation committee considered the applications and scored them. The committee then resolved that the three highest of the applicants who had scored more than the ‘shortlisting benchmark of 60 points’, would be invited to make a presentation to the committee. However only two attended that event, and the evaluation committee then recommended to the Land Reform Advisory Commission that the two farms should be allotted to Felseneck Game Ranch. The entity that had come second in the presentation was Innodev, later the applicant in this case.
Passions
But the commission never considered the matter sent to it by the committee. Instead, its chairperson sent the matter back to the evaluation committee saying that it should also interview applicants with scores of 50 or more.
The committee therefore held another round of presentations with Passions among those now considered. And, after the new presentations, the evaluation committee recommended that it should be awarded the two farms.
This time the land commission considered and approved the recommendation sent to it, and the Ministry of Land Reform duly published a notice that Passions had been successful.
‘Gate crash’
Innodev then challenged the outcome.
With the help of counsel for Innodev, Norman Tjombe, Judge Geier quickly uncovered a number of serious problems with the award.
First, Passions had not in fact applied to be allotted the two farms. The judge found that since it had not applied, it should not have been considered. On those grounds alone, the allocation of the farms to Passions had to be set aside. As the judge put it, for ‘inexplicable reasons’, Passions had been allowed to ‘gate crash’ the process, and even ‘usurp it’, without ever having formally lodged the prescribed application.
‘Goalposts’
Next, the commission did not consider the recommendation of the evaluation committee. Instead, it was just the chair of the commission who referred the matter back to the committee with his personal recommendation that other entities, who had scored fewer points in the initial evaluation, should also be allowed to make presentations. The chairperson’s decision and actions were ultra vires and so was the instruction to the evaluation committee to reconsider.
Judge Geier pointed out that when the chairperson ‘shifted the goalposts’ by instructing – unlawfully – that the evaluation committee consider those with fewer points, it was a decision that favoured Passions. Initially Passions did not show membership that would satisfy the gender component required, but two women were later added. Also, at the initial stage Passions was not owned ‘by a group of Namibians’ as required. But this too, was rectified at a later stage.
‘Social standing’
The judge pointed out that the Minister later admitted that he had considered the hopeful candidates in terms of ‘their gender, social standing and other special considerations’. Again, in his answering affidavit, the Minister said that he had applied his mind to the allocation and had taken into account ‘gender, citizenship, social standing, their educational background … to mention a few.’
According to counsel for Innodev, ‘Social standing … was not a factor to the considered and would in any event be offensive to … the Namibian Constitution, which prohibits discrimination on the basis of social status.’
Innodev’s members were ‘ordinary hardworking folk.’ However, Passions ‘has a former mayor and prominent ruling party figure as a member – although belatedly made a member so as to influence a favourable scoring (which seems to have worked). That alone is a sufficient reason to set aside the decision.’
‘Glossed over’
In response, counsel for Passions said that its experience would make a meaningful contribution to Namibia’s socio-economic development.
Judge Geier said that key issues had been ‘glossed over’ by Passions. The chance given to Passions to rectify its initial failure to meet the criteria was unfair to the other parties. This included the inclusion of the former mayor to help get a favourable scoring.
‘All this was not fair to the other applicants. Administrative action has to be fair. If it is not, [it] becomes liable to be set aside on review.
Conflict of interest
‘But there is more,’ said the judge. A member of the evaluation committee, Julius Erckie, first disclosed no conflict of interest but then, at a later meeting, recused himself from the proceedings. At a further meeting, attended by Erckie, the minutes show that ‘no one declared a conflict of interest’.
There was no disclosure by Erckie, even though the law says that no member may participate where there is a conflict of interest, with a fine of N$20 000 or five years in prison, or both, for infringing that provision.
‘Despite the seriousness of not disclosing … Erckie participated in the meeting [which involved considering the ranch] for which he moonlights as a manager.’ His position is made abundantly clear in the company’s business proposal which lists him as in charge of management.
‘Totally inappropriate’
Judge Geier found there was no dispute about Erckie’s continued participation in the process even though he is in charge of management of one of the entities under consideration.
His participation was ‘totally inappropriate’, said the judge. Together with all the other irregularities this made the award unfair.
He commented on the ‘serious nature and vitiating effect of [the] corruption participation of Erckie in considering the applications, and that parliament had approved serious penal provisions to show that it viewed this kind of ‘transgression’ ‘in a most serious light’.
Faced with all these factors, the court’s conclusion was ‘inevitable’, he said.
‘Implosion’
‘The exposed irregularities materially undermine the entire allotment process, bringing about its implosion.’
The court therefore set aside the decisions to award the farms to Passions and directed the Minister, the commission and the evaluation committee to consider the matter afresh. Finally, they were all ordered to give written reasons for their new decisions to Innodev, within 40 days of the decision being made.
The three government respondents were ordered to pay the legal costs.
