Windhoek High Court Judge Thomas Masuku on Friday last week cancelled a contract for the upgrade of the Ondangwa airport, awarded to China State Construction Engineering Company (CSCEC) in 2016.
The new Namibia Airports Company (NAC) Board of Directors had asked the Windhoek High Court to review and set aside a decision and resolution taken by the previous board of the embattled public company to award a tender to CSCEC as the contractor for the Ondangwa airport runway rehabilitation project.
They said that the award was marred by serious misrepresentations to the previous board by the company’s former CEO Tammer El-Kallawi and its manager for operations, Courage Silombela, which renders the award null and void. The board further asked Judge Masuku to declare that any contract that may have come into existence between the NAC and CSCEC as a result of the award, including the award and as communicated to CSCEC on June 24, 2016 in a letter, as void ab initio – not legally binding – alternatively that any such contract be declared invalid and set aside.
The judge granted the NAC the prayers they asked for and ordered that the Chinese company must pay the costs of the application consequent upon the employment of one instructing and three instructed counsel. The NAC Board was represented by South African senior counsel Rafik Bhana assisted by advocates Andrew Rowan and Unanisa Hengari and instructed by Clive Kavendji of Kangueehi and Kavendji Inc, and CSCEC by South African senior counsel Vincent Maleka assisted by Dr Sacky Akweenda and advocate Eliaser Nekwaya, represented CSCEC on instructions of ENS Africa.
According to Judge Masuku, the NAC Board had the right to do a self-review of decisions that were unlawful and that in this instance the self-review was brought within a reasonable time contrary to the claim of CSCEC it took an unreasonably long time to take the decision to cancel the tender. The judge held that the previous board of the NAC had been fed with serious misrepresentations by its employees such that the decision taken to award the tender to CSCEC had not been properly made and on the basis of correct and true facts, and it was thus liable to be set aside. He also found that it was not necessary for the board to join the employees responsible for the skewed information given to the previous board as they had no interest in the self-review and subsequent cancellation of the contract. In its pleadings, the NAC said that the project was being dealt with in an urgent manner while there was no reason for such, and in the process, running roughshod over the clear and unambiguous procurement procedures and policies of the NAC and that it was for that reason they asked the court to allow them the self-review.
He further said that in his view there was no “egregious” delay on the part of the NAC in launching the self-review proceedings and that in any case such delay was properly explained. He also found that the NAC had made a very strong case on the merits to justify the court’s discretion that the application should proceed. This, he said, is based on the illegalities mentioned, which include the sidelining of the procurement policies of the NAC without any lawful or other basis. According to the judge, there was an exponential increase in the amount quoted for the tender in a matter of weeks by 26 percent.
He further said the collapsing of the two phases into one was tailored to benefit CSCEC, which is what ultimately persuaded him to find in favour of the NAC.