TOPIC 4 WORKSHOP

Citation: Newpoint Electronic Solutions (Pty) Ltd v Permanent Secretary, Office of the
Prime Minister (HC-MD-CIV-MOT-REV-2018/00277) [2020] NAHCMD 40 (3 February
2020)

FACTS:

In 2015, a tender was advertised by the second defendant through the Namibian
Tender Commission Secretariat [para 5]. This tender was subsequently awarded to the
plaintiff in April 2016. However, the defendant consulted an attorney and came to a
conclusion that the contract entered into by the parties was void and therefore
unenforceable [para 8]. The defendants allege that in support of the counter-proposal,
the contract did not comply with relevant laws governing adjudication of government
tenders in Namibia [para 13]. The applicant subsequently asked the court to review and
reverse the defendant's decision to cancel the tender referred to as Tender No. E1/2-
7/2015 [para 14].

The applicants submits that the action taken by the defendant, as reported in the letter
in question, constitutes an administrative action, is unlawful, and should be reviewed by
the court [para 18]. The letter inside argues that if the appellant makes a mistake, the
appellant's remedy lies in the principles of contract law. Plaintiff further alleges that they
were denied the right to a hearing before a revocation action was filed by the
respondents.

CONSTITUTIONAL LAW QUESTION:

The question to be asked in this particular case is, was the approach by the applicant to
the High Court to seek remedy in administrative law to have the cancellation of the
tender by the defendants set aside, right? [para 19]
HOW THE QUESTION RELATES TO TOPIC 4 (RULE OF LAW):

The rule of law is an imperative part of Namibian law, and any steps taken by public
functionaries should be done in accordance with the laws set out in the constitution and
other legislation [para 26]. The question relates to the rule of law as it pointed out that
the applicant was seeking remedy in administrative law instead of contract law of which
they were not in accordance with sections 7(1)(a) and (b) and section 16(2)(a) of the
Tender Board Act of 1996.

THE REASONING FOR THE DECISION MADE BY THE COURT ON THE

CONSTITUTIONAL LAW QUESTION:

The applicant claimed that it had invalidated the contract under administrative law,
which was the wrong approach to use to prove their claim, but in any case, it is very
clear that the dispute arises in the contract [para 19]. The awarding of the contract is
governed by a legislative enactment and the does not mean the respondent may not be
heard if they were of the opinion that any applicable Act has been breached and does
not render the applicant entitlement to be heard in terms of administrative law. The
respondents are to exercising public powers that are subject to administrative action by
taking this decision [para 20]. Section 16(2)(a) of the Tender Board Act clearly outlines
the difference between a bidder's acceptance of a contract offer and execution of an
offered tender contract with respect to the award of a contract. The first step is as
described above and closing includes acceptance of the award within the 30 days from
the announcement of the award offer [para 23]. The applicant and the Tender Board
have not reached an agreement within the 30 days of notification to the applicant [para
24]. This is justification by law unless there are exceptions that justify deviations from
the established constitutional path, of which it is rare that any would be made [para 26].
The current tender is void as it has not been completed in any way in accordance with
applicable law. Enforcement of this contract would therefore be contrary to the notion of
the rule of law [para 28].