WINDHOEK – Six catering companies which previously supplied food on tender to the Namibia Defence Force (NDF) lodged an urgent application yesterday seeking to nullify the tender that the defence ministry awarded to the company August 26 Logistics.
The tender is worth N$5 billion and has been marred by controversy with an avalanche of negative media reports since it was made public. However, the government lawyers, represented by Sisa Namandje, argued that the five companies have not demonstrated a sense of urgency and as such the case should be struck from the roll with costs. Judge Maphios Cheda reserved his judgement to November 1.
August 26 Logistics is a company in which the Ministry of Defence holds 51 percent shares. The remainder of the shares are vested in a consortium led by local business personality and former Windhoek mayor, Matheus Shikongo, and South African businessman Sarel Oberholzer.
The six companies that approached the High Court yesterday are Independence Catering, owned by another Namibian business mogul, Aaron Mushimba, Nutrifood an Okahandja based catering outfit, Heritage Caterers, Welwitschia Rural Caterers, Tsepo Catering and Tulipamwe Catering.
The catering companies asked Judge Cheda to issue an order that invalidates the agreement between August 26 Logistics and the Ministry of Defence, and declare that agreement “null and void, alternatively of no force and effect”, They also ask that, subsequent to that order, the court compels the Ministry of Defence to call for a new tender “for the supply and delivery of rations from November 2013 to 31 October 2017”. They further want the court to alternatively suspend the execution and implementation of such agreement pending the final determination of this application.
The application was lodged against the Minister of Defence, Nahas Angula, the Minister of Finance, Saraa Kuugongelwa-Amadhila, the Chairperson of the Tender Board, Ericah Shifuda, August 26 Holding Company and August 26 Logistics.
The catering companies, represented by Jean Marais, assisted by Essie Schimming-Chase and instructed by M B de Klerk and Associates, further asked the court to declare the “Professional Services Agreement” concluded between the two August 26 companies null and void or alternatively suspend the execution and implementation of such agreement pending the conclusion of the application. Another order the applicants seek is an interdict restraining the Ministry and its two August 26 companies from “concluding, implementing or executing any agreements” regarding the supply of rations and logistics to the NDF. The applicants also asked for a cost order to include one instructing and two instructed counsels.
Namandje told Judge Cheda that any urgency claimed by the applicants was self-created as they knew from July 23 already that the ministry was contemplating such agreement to cut costs. He said that the ministry issued a press release on July 23 that it would enter into an agreement with August 26 Logistics to commence the supply of rations to the NDF on October 01. Namandje said that the applicants’ claim that they only came to know about the proposed agreement was “far-fetched and improbable” as by their own admission they were aware of the “rumours” surrounding the proposed agreement. According to Namandje the mere fact that the applicants admitted to being aware of the “rumours” and including the widespread media coverage the issue received in the local media should be an indication to the court that the applications were dragging their feet in bringing the application before court well on time. According to him they are now inconveniencing the court with their last ditched effort to bring an “urgent application”. Without going into the merits of the case, Namandje said that the ministry’s decision to establish their own company to source rations for the NDF was a policy decision and well within the ministry’s mandate. On the various additional affidavits filed by the applicants Namandje merely said that it is “alien to our jurisdiction and must be struck from the roll with the contempt it deserves”.
During his arguments, Marais said that the applicant’s cannot be faulted for “taking some time to marshal their forces”. He said that the “media release” the respondents rely on came to the knowledge of the applicants only in September. He argued that the media release was not intended for the applicants, but for the media.
Marais told Judge Cheda that when the applicants became aware of the “rumours” about the envisaged agreement between August 26 and the defence ministry they immediately instructed the attorneys to enquire about it at the ministry, but only received a reply from the Tender Board “thanking them for bringing the issue to its attention”. According to the applicants, the only information they received was that the tender was extended to September 30.
By Roland Routh