REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: HC-MD-CIV-MOT-REV-2023/00052

In the matter between:

MOTOR VEHICLE ACCIDENT FUND                                                  APPLICANT

and

THE PUBLIC PROCUREMENT REVIEW PANEL                      1^ST RESPONDENT

ORCAS INEESTMENT MANAGERS (PTY) LTD                       2^ND RESPONDENT

ALLAN GRAY NAMIBIA (PTY) LTD                                         3^RD RESPONDENT

All SEASONS CAPTIAL MANAGEMENT LIMITED                   4^TH RESPONDENT

ARYSTEG ASSET MANANGEMENT (PTY) LTD                      5^TH RESPONDENT

ASHBURTON INVESTMENT NAMIBIA                                    6^TH RESPONDENT

CAPRICORN ASSET MANAGEMENT (PTY) LTD                     7^TH RESPONDENT

ELJOTA INVESTMENTS (PTY) LTD                                        8^TH RESPONDENT

FUTURE GROWTH ASSET MANAGEMENT                            9^TH RESPONDENT

HANGALA CAPITAL INVESTMENT

MANAGEMENT (PTY) LTD                                                    10^TH RESPONDENT

MAZI ASSET MANAGEMENT (PTY) LTD                               11^TH RESPONDENT

MOMENTUM ASSET MANAGEMENT (PTY) LTD                   12^TH RESPONDENT

MOPANE ASSET MANAGEMENT (PTY) LTD                         13^TH RESPONDENT

MUMI INVESTMENTS MANAGERS (PTY) LTD                      14^TH RESPONDENT

M&G INVESTMENTS NAMIBIA (PTY) LTD                            15^TH RESPONDENT

NAMIBIA ASSET MANAGEMENT LIMITED                           16^TH RESPONDENT

NINETY-ONE ASSETS MANAGEMENT                                    

NAMIBIA (PTY) LTD                                                              17^TH RESPONDENT

OLD MUTUAL INVESTMENT GROUP

NAMIBIA (PTY) LTD                                                              18^TH RESPONDENT

PRESCIENT INVESTMENT MANAGEMENT (PTY) LTD         19^TH RESPONDENT

SCHROEDER INVESTMENT MANAGEMENT LIMITED          20^TH RESPONDENT

SEI INVESTMENT SOUTH AFRICA (PTY) LTD                      21^ST RESPONDENT

SISEDI INVESTMENT GROUP (PTY) LTD                             22^ND RESPONDENT

STANLIB NAMIBIA (PTY) LTD                                              23^RD RESPONDENT

STEYN CAPITAL MANAGEMENT (PTY) LTD                         24^TH RESPONDENT

TAQUANTA ASSET MANAGERS (PTY) LTD                         25^TH RESPONDENT

TULIVE CAPITAL (PTY) LTD                                                 26^TH RESPONDENT

UUYAMBA INVESTEMENT (PTY) LTD                                   27^TH RESPONDENT

Neutral Citation:    Motor Vehicle Accident Fund v The Public Procurement Review Panel (HC-MD-CIV-MOT-REV-2023/00052) [2023] NAHCMD 79 (28 February 2023)

CORAM:      Ueitele, J

Heard:          15 February 2023

Delivered:    28 February 2023

Flynote:       Public Procurement Act 15 of 2015 – Section 55 – a bidder who is dissatisfied with an award made by a public entity may apply to the public entity for that entity to reconsider its award and the public entity must determine the application to reconsider an award by a dissatisfied bidder if such application is made – these requirements in s 55(4A) must be met or complied with before a review panel can exercise the power conferred on it by s 58.

Public Procurement Act 15 of 2015 – Section 55(4A) – the subsection is couched in the permissive language and not mandatory language – the subsection is not imposing an obligation on the bidder, it is creating a right – the law cannot compel people to exercise or enjoy their rights, all that the law does is to create the right and give persons the choice whether they will or will not exercise the right. The fact that s 55 (4A) of the Act grants a dissatisfied bidder the discretion whether or not to enforce its right does not take away the fact that if the bidder/tenderer decides to exercise his or her right he/she must still comply with the requirements of the legislation.

Public law – creatures of statutes – a creature of statute is a decision-making functionary created by law, and its powers and duties emanate from and are limited to the provisions of its enabling legislation – if a decision-making functionary exceeds the powers conferred by the empowering provisions of a statute, that decision-making functionary acts ultra vires (beyond the powers) and in breach of the doctrine of legality.

Summary:    On 22 October 2021, the applicant publicly advertised a bid for the Provision of Investment Management Services with regard to moneys of the Fund. Following the closing of the bid, the applicant received 27 bids from both within and outside Namibia. The second respondent was one of those bidders.

On 19 November 2021, the applicant received a letter from four bidders (the second respondent not being one) seeking clarification in respect of the bid document and the criteria to be used in the bid evaluation. In response to the clarification sought by the four bidders, the applicant arranged a clarification meeting for 14 January 2022, for the benefit of all bidders, and as a consequence of the clarification meeting, the bid closing date was extended to 28 January 2022.

The applicant then, on 7 December 2022, gave ‘Notice for Selection of Award’ to all bidders and also provided the bidders with an Executive Summary of the Bid Evaluation Report.

On 15 December 2022, the applicant received a letter from the second respondent in which letter the second respondent made certain requests and demands, and the applicant on 19 December 2022, responded to the letter explaining the request, meeting and/or rejecting the demands of the second respondent. This marked the end of the exchange between the applicant and the second respondent.

On 28 December 2022, the applicant sent out award letters to all the successful bidders. On that same day the applicant received an electronic mail from the second respondent to which the second applicant attached its application for review to the Review Panel – the first respondent. The applicant avers it did not react to the purported application for review because it took the position that the application should not be considered by the Review Panel, because the review application was not Act compliant.

On 9 January 2023, the applicant received a letter from the Review Panel advising it that it had received an application for review by and from the second respondent and that the replying affidavit by the applicant had to be filed within two days of receiving the application for review. On 11 January 2023, the applicant filed its affidavit. On 12 January 2023, the applicant received the notification by the Review Panel that the hearing of the review application by second respondent was scheduled for 17 January 2023.

The review proceedings took place as scheduled on 17 January 2023. On 27 January 2023, the Review Panel communicated its decision in respect of the review application launched by the second respondent, to the applicant. In its decision the Review Panel amongst other orders, set aside the award of the contracts by the applicant, and ordered the process to start afresh.

Dissatisfied with the decision of the Review Panel, the applicant approached this court on an urgent basis, seeking the setting aside the orders of the Review Panel on the basis that a bidder has the right to apply to the Review Panel for the review of a decision taken by a public entity, but for the Review Panel to entertain the review application, certain requirements must first be met by the bidder. One of the requirements is that, once the bidder is informed that it was unsuccessful, it may request the public entity to reconsider its selection of a bid for award, and only if the bidder does not receive a response or is dissatisfied with the decision of the public entity, can the bidder take the matter to the Review Panel.

The second respondent argued, its letter of 15 December 2022 constituted its application for reconsideration, alternatively, that in law, it did not have to first request for such reconsideration to the applicant, before approaching the Review Panel.

Held that, the question is, whether the Review Panel had the power to hear the second respondent’s review application in the absence of an application by the second respondent to the applicant for it to reconsider its decision of 7 December 2022, and not whether or not the second respondent had a choice to first exhaust its internal remedies.

Held that, the letter by the second respondent is a registration of dissatisfaction and a demand for clarification and request or demand for certain documents. It is not a request for the reconsideration of a decision by the applicant.

Held that, the legislature has introduced a condition which must be complied with before a public entity awards a procurement contract and before a review panel established under s 58 can review the decision of a public entity. The condition is the requirement that a bidder who is dissatisfied with an award made by a public entity may apply to the public entity for that entity to reconsider its award and the public entity must determine the application to reconsider an award by a dissatisfied bidder/tenderer if such application is made to it.

Held that, the Review Panel was, in law, required to make a determination whether or not, certain facts existed before it could exercise the statutory powers conferred on it by legislation.

Held that, the provision of s 55 of the Act makes the existence of an application for reconsideration of a decision of the public entity a condition precedent for the Review Panel to review the decision of a public. It follows that in the absence of an application for reconsideration as contemplated in s 55(4A) the Review Panel has no power to review the decision of a public entity. It thus follows that in the present matter the Review Panel had no power to review the decision of the applicant and the Review Panel acted ultra vires when it did so and its decision is thus liable to be set aside and is hereby set aside.

ORDER

1. The applicant’s (that is, the Motor Vehicle Accident’s Fund) non-compliance with the Rules of this Court is condoned and the forms and service provided for in the Rules is dispensed with and this application is heard on an urgent basis as provided for in rule 72(3) and (4) of the High Court Rules.

2. The service of the application in this matter on the 4^th respondent, 11^th respondent, 19^th respondent, 20^th respondent, 21^st respondent, 24^th respondent, and 25^th respondent in a manner other than that contemplated in Rules 8 and 11 of the Rules of Court is condoned.

3. The decision by the first respondent (that is, The Public Procurement Review Panel) delivered on 27 January 2023 (“decided on 17 January 2023”) is reviewed and set aside.

4. The second respondent (Orcas Investment Managers (Pty) Ltd) must pay the applicant’s costs of the application.

5. The matter is regarded as finalised and is removed from the roll.

JUDGMENT

UEITELE J:

Introduction and background

[1]      The applicant in this matter is the Motor Vehicle Accident Fund, a fund established in terms of s 2 of the Motor Vehicle Accident Fund Act No. 10 of 2007.[1] There is, thus, no dispute that the Motor Vehicle Accident Fund is a public entity as envisaged in the Public Procurement Act No. 15 of 2015,[2] hereinafter (“the Act”). There are 27 respondents cited and served with the application and none of them (except one) filed any papers in opposition of the application. For that reason, it is unnecessary, for purposes of this judgment to describe all the respondents.

[2]      As in indicated earlier, only one (the second respondent) of the 27 respondents decided to participate, and oppose the application by the Motor Vehicle Accident Fund. I will in this judgment thus only refer to those parties that participated in this application or those who it is relevant to mention.

[3]      As I indicated earlier, the applicant is the Motor Vehicle Accident Fund, I will for the sake of convenience refer to the applicant as the “Fund”. The first respondent is the Central Procurement Board of Namibia,[3] with the principal objects ‘to conduct the bidding process, amongst others, on behalf of public entities for the award of contracts for procurement or disposal of assets that exceed the threshold prescribed for public entities; to enter into contracts for procurement or disposal of assets on its own behalf or on behalf of public entities, and to direct and supervise accounting officers in managing the implementation of procurement contracts awarded by the Board.’ I will for the sake of convenience refer to the first respondent as the “Board”. The second respondent is Orcas Investment Managers (Pty) Ltd, the only body of the 27 cited respondents which opposed the Fund’s application. I will for the sake of convenience refer to the second respondent as “Orcas”.

[4]      On 6 February 2023, the Fund, by way of a notice of motion commenced proceedings out of this court in terms of which it sought the following relief:

‘1.      Condoning the applicant’s non-compliance with the Rules of this Honourable Court and dispensing, as far as need be, with the forms and service provided for in the Rules and hearing this application on an urgent basis as provided for in High Court Rule 72(3) and (4);

2.      That the decision by the first respondent delivered on 27 January 2023 (‘decided on 17 January 2023’) be and is hereby reviewed and set aside;

3.      An Order in terms whereof applicant’s service of this application on the 4^th respondent, 11^th respondent,19^th respondent, 20^th respondent, 21^st respondent, 24^th respondent and 25^th respondent (peregrine respondents) in a manner other than contemplated in Rule 8 and 11 of the Rules of this High Court is condoned;

4.      Costs of one instructed counsel if this application is opposed.’

[5]      The background facts as I discerned from both the founding affidavit and the opposing affidavit are largely not in dispute and are these: On 22 October 2021, the Fund publicly advertised a bid for the Provision of Investment Management Services with regard to moneys of the Fund, with bid reference number SC/RP/MVA FUND – 03/2021. The closing date for the bid was 6 December 2021. The Fund received 27 bids from both within and outside Namibia. Orcas was one of those bidders (Orcas submitted its bid under the name of Sovereign Investments (Pty) Ltd but underwent a name change during the year 2022 and this fact was communicated to the Fund).

[6]      On 19 November 2021, the Fund received a letter by four bidders (the identities of those bidders is for the purposes of this judgment irrelevant) seeking clarification in respect of the bid document and the criteria to be used in the bid evaluation. In response to the clarification sought by the four bidders, the Fund arranged a clarification meeting for 14 January 2022, for the benefit of all bidders, and as a consequence of the clarification meeting, the bid closing date was extended to 28 January 2022. The opportunity to request clarification by bidders with regard to bidding documents is provided for in regulation 34.

[7]    It is not said in the affidavits, but what appears therefrom is that the Fund took a period of approximately ten months to evaluate the bids and on 7 December 2022, gave Notice for Selection of Award to all bidders and also provided the bidders with an Executive Summary of the Bid Evaluation Report. On 13 December 2022, the Fund received a letter from M&G Investment (Pty) Ltd, hereinafter (“M&G”), in which it, in terms s 55(4A), applied for a reconsideration of the bid. Various exchanges of letters (which are not relevant to this case) ensued between the Fund and M&G with regard to the request to reconsider the selection of a bid for award. On 23 December 2022, M&G informed the Fund that it was satisfied with the clarification by the Fund and informed the Fund to proceed with the award of the bid.

[8]      On 15 December 2022, the Fund received a letter from Orcas in which letter Orcas made certain requests and demands. Since this letter is central to the dispute between the Fund and Orcas I will in full and verbatim quote the letter. It reads as follows:

‘Dear Sir,

Re:    Notice to Award and Executive Summary - Investment Management Services REF:SC/RP/MVAFUND-03/2021

1       Your correspondence titled as above and dated 7 December 2022 refers.

2. Orcas Investment Managers (Pty) Ltd (formally known as Sovereign Asset Management (Pty) Ltd at the time of bid submission) made an offer for two products, namely SA Equity and Africa Equity. According to the Executive Summary provided by the MVA Fund, we ranked 8th under the SA Equity and 2nd under Africa Equity, hence no allocation was given to us, even though we passed the minimum overall score of 70% for technical and financial compliance.

3. Please be informed that we took note that two asset classes, namely SA ILB 10/15 Years and SA Equity, were awarded to more than one bidder. SA 1LB 10/15 Years was awarded to two bidders: Stanlib Asset Management (Pty) Ltd and Future Growth Asset Management, The SA Equity was awarded to Namibia Asset Management Limited and Ninety One Asset Management Namibia (Pty) Ltd. In the absence of a Scoring Sheet, it would appear that these bidders were probably ranked the highest two under the respective two asset classes.

4. It is common course that Sovereign Asset Management (Pty) Ltd was ranked 2nd under Africa Equity which was only awarded to one bidder, namely Allan Gray Namibia (Pty) Ltd.
5. As the 2nd ranked bidder under Africa Equity, we would like to know what award criteria was used to only award it to Allan Gray, whereas, the asset classes mentioned above in paragraph 3 were awarded to more than one bidder.

6. In light of the above, we are therefore not satisfied with the selection for award under Africa Equity and hereby demand the Scoring Sheet for all bidders that made an offer under Africa Equity, Secondly, we demand that the MVA Fund provide us with an explanation detailing why two bidders were selected for award under SA ILB 10/15 Years and SA Equity, while for Africa Equity, only one bidder was considered, We therefore, in addition, request the Scoring Sheet of all bidders that made an offer under the SA ILB 10/15 Years and SA Equity asset classes.

7. Public procurement in Namibia is governed by the Public Procurement Act, 2015 (as amended) and is founded on principles of fairness and transparency, amongst others. We are confident that the MVA Fund conducts its procurement procedures in line with these principles as well and we shall therefore await for your response to our request.’ (Italicised and underlined for emphasis)

[9]      The Fund replied to the letter of Orcas on 19 December 2022. It explained the rationale for awarding to more than one asset manager for a specific asset class. The request for scoring sheets was refused, according to the Fund, due to a misunderstanding of what Orcas requested. After the Fund responded to Orcas, Orcas did not again engage the Fund any further.

[10]    On 28 December 2022, the Fund sent out award letters to all the successful bidders. On that same day the Fund received an e-mail from Orcas to which the application for review to the Public Procurement Review Panel, hereinafter the (“Review Panel”),[4] was attached. Ms Martins-Hausiku, who deposed to the founding affidavit on behalf of the Fund stated that, the Fund did not react to the purported application for review because it took the position that the application should not be considered by the Review Panel because the review application was not Act compliant.

[11]    On 9 January 2023, the Fund received a letter from the Review Panel advising it that it had received an application for review by Orcas and that the replying affidavit by the Fund had to be filed within two days of receiving the application for review. On 11 January 2023, that is two days after receiving the correspondence from the Review Panel, the Fund filed its affidavit erroneously termed the ‘replying affidavit’. On 12 January 2023, the Fund received the notification by the Review Panel that the hearing of the review application by Orcas was scheduled for 17 January 2023.

[12]    The review proceedings took place as scheduled on 17 January 2023. On 27 January 2023, the Review Panel communicated its decision in respect of the review application launched by Orcas, to the Fund. In its decision the Review Panel amongst other order made the following orders:

‘1.        POINTS IN LIMINE RAISED BY THE PARTIES

1. 1. The points in limine raised were :

First Respondent [that is, the Motor Vehicle Accident Fund]

1. 1. The 1^st Respondent objected to the Application for Review alleging that the Applicant did not apply for reconsideration in terms of Section 55(4A) of the Public Procurement as amended, but instead only requested clarification on 15 December 2022, to which it accordingly responded on 19 December 2022.

1. 2. To this, the Applicant [that is, Orcas] indicated that if regard is held (sic) to its 15 December 2022 letter it would be clear that it was a request for reconsideration.

1. 3. In this regard, the Review Panel held that the Applicant’s request of 15 December 2022 indicated that it was dissatisfied with the 1^st Respondent’s decision or action. Therefore the request is nothing short of the essential elements of a request for reconsideration.

Applicant

1. 4. …

6       DECISIONS OF THE REVIEW PANEL

6.1    In the premises the Review Panel makes the following Order:

6.1.1      The Review Panel confirms that the procurement contracts awarded in contravention of section 55(4C) of the Public Procurement Act as amended are invalid ab ignition (sic).

6.1.2.     As a result the procurement proceedings in respect of the Bid Number SC/RP/MVA FUND – 03/2021 for the Provision of Consulting Services – Investment Management Services are hereby terminated for a fresh start in terms of section 60(f) of the Public Procurement Act, 2015 (Act No.15 of 2015).

6.1.3      The effective date of the Order is 17 January 2023.’

[13]    Dissatisfied with the decision of the Review Panel, the Fund approached this court on an urgent basis, essentially, seeking the relief that I have set out earlier in this judgment. Mr Shivambi the deponent to Orcas’ answering affidavit denied that the matter is urgent, and reasoned that the urgency contended for by the Fund is self-created.

The grounds of review and the grounds of opposition by Orcas

[14]    The core of the applicant’s basis for the relief it seeks is its contention that the Review Panel did not have the jurisdiction to entertain the review application. The Fund said ‘The Review Panel could not assume jurisdiction over the application for review by Orcas Investment Managers (Pty) Ltd (“Orcas”), in the absence of a request by Orcas to the Fund to reconsider its selection of a bid for award as required by section 55(4A) of the Act.

[15]    The Fund furthermore advanced other grounds for review but the essence of the further grounds of review are the allegation that the review proceedings were marred by vitiating irregularities (which Ms Martins-Hausiku tabulated in the founding affidavit) in the conduct of the review proceedings before the Review Panel and that the Review Panel misdirected itself in material respects.

[16]    Orcas opposes this application by the Fund principally on the basis that it did, on 15 December 2022, apply in terms of s 55(4A) of the Act, to the Fund for it to reconsider its ‘notice for selection of award’. In the alternative, Orcas opposes the application on its contention that it was not mandatory for it (Orcas) to seek a reconsideration as it had a choice whether or not to seek reconsideration of the notice of selection award.

[17]    In view of the parties’ contentions, I am of the view that the question that I am required to determine in this matter is simply whether the Review Panel could entertain Orcas’ ‘review application’ in the absence of an application by Orcas to the Fund for the Fund to, in terms of s 55(4A) of the Act, reconsider its ‘notice for selection of award’ and whether Orcas’ letter of 15 December 2022 was an application for reconsideration as contemplated in s 55(4A) of the Act.

Discussion

[18]    I find it appropriate to, before I embark on answering the question that I have identified in the preceding paragraph, briefly set out the legislative provisions which in my view are relevant to that question.

[19]    The first section which, in my view, is of relevance is s 55 of the Act. It provides that a public entity (in this instance the Fund) must award a procurement contract to the bidder having submitted the lowest evaluated substantially responsive bid which meets the qualification criteria specified in the pre-qualification or bidding documents, after it has complied with the steps outlined in subsections (3) and (4).[5]

[20]    The section furthermore provides that an accounting officer must, in the prescribed manner and form, notify-

1. the successful bidder of the selection of its bid for award; and

2. the other bidders, specifying the name and address of the successful bidder and the price of the contract, accompanied by the executive summary of the bid evaluation report.[6]

[21]    The section proceeds and provides that an unsuccessful bidder may, within seven days from the date of receipt of the notice referred to in subsection (4), apply to the public entity to reconsider its selection of a bid for award and the Board or public entity must, within seven days from the date of receipt of the application, notify the bidder of its decision.[7] If the unsuccessful bidder does not, receive a response (to its application for reconsideration) from or is not satisfied with a decision of the public entity, the unsuccessful bidder may within the seven days referred to in s 59 of the Act apply to the Review Panel for review of the decision or action as contemplated in s 59(1) of the Act. The section furthermore provides that a bidder who is aggrieved by a decision or action of the public entity must exhaust the remedies under s 55 of the Act before applying for review under s 59(1) of the Act.[8]

[22]    Mr Marcus, who appeared for the Fund, argued that a bidder has the right to apply to the Review Panel for the review of a decision taken by a public entity, but for the Review Panel to entertain the review application, certain requirements must first be met by the bidder. One of the requirements is that, once the bidder is informed that that it was unsuccessful, it may request the public entity to reconsider its selection of a bid for award and only if the bidder does not receive a response or is dissatisfied with the decision of the public entity, can the bidder take the matter to the Review Panel. If the bidder is satisfied with the decision by the public entity, the matter ends there. Mr Marcus further argued that s 55(5) of the Act empowers the public entity to award the procurement contract to the successful bidder if no application for reconsideration is made by any bidder under subsection (4A).

[23]    Mr Marcus thus argued that since Orcas did not apply for the reconsideration of the ‘notice for selection of award’, the Review Panel had no power to entertain Orcas’ review application.

[24]    Mr Shimutwikeni, who appeared for Orcas, on the other hand, argued that the Review Panel exercised its discretion and took a decision that the letter dated 15 December 2022 written by Orcas to MVA went further than being a mere request for clarity and accepted it to be a reconsideration application. He further argued that from the contents of the letter (Orcas’ letter of 15 December 2022), Orcas was doing more than seeking clarity, by clearly indicating their dissatisfaction and in essence sought a reconsideration of the ‘notice of award’.

[25]    Mr Shimutwikeni with vigour and reliance on Radial Truss Industries (Pty) Ltd v Chairperson of the Central Procurement Board of Namibia,[9] and ABB Namibia Ltd v Central Procurement Board of Namibia,[10] submitted that the arguments on behalf of the Fund must be viewed with caution as they appear to attempt to ‘herd Orcas back to the same MVA forum which made a decision on the bid despite the fact that they are the forum which evaluated the bid and further that the response dated 19 December 2022 clearly indicates a position taken notwithstanding Orcas clearly stating its dissatisfaction’.

[26]    Mr Shimutwikeni further argued that the court must be persuaded to take note of the fact that the s 55 (4A) and 55(4B) offend the principles of functus officio and the well-established principle that one should not be a judge in one’s own cause. He furthermore submitted that due to the oddity of s 55(4B), the court must be persuaded to interpret it in the same manner that the court interpreted s 59 in ABB Namibia Ltd v Central Procurement Board of Namibia Supra, where Masuku J said:

‘…It is important in this regard to have regard to the nomenclature employed by the legislature. It is clear that the legislature chose, in its wisdom, to employ the use of the word ‘may’ in s59, which is permissive and not mandatory….’

[27]    In Total Namibia (Pty) Ltd v OBM Engineering and Petroleum Distributors CC,[11] the Supreme Court set out the proper approach to the interpretation of documents, generally. The Supreme Court, in a nutshell stated that, interpretation is 'essentially one unitary exercise' in which both text and context are relevant to construing a legal document. The court engaged upon its construction, and found one must assess the meaning, grammar and syntax of the words used; and the words used must be construed within their immediate textual context, as well as against the broader purpose and character of the document itself.

[28]    The court stated that consideration must be given to the language used in the document in the light of the ordinary rules of grammar and syntax, the context in which the provision appears, the apparent purpose to which it is directed, and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighted in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results, or one that undermines the apparent purpose of the document. The court must avoid the temptation to substitute what it regards as reasonable, sensible or unbusinesslike, for the words actually used.

[29]    Reading s 55 of the Act, in its entirety and context, in my view, makes it patently clear that the legislature has introduced a condition which must be complied with before a public entity awards a procurement contract and before a review panel established under s 58 of the Act can review the decision of a public entity. The condition is the requirement that a bidder who is dissatisfied with an award made by a public entity may apply to the public entity for that entity to reconsider its award and the public entity must determine the application to reconsider an award by a dissatisfied bidder/tenderer if such application is made to it. I, therefore, find that s 55 of the Act introduced the requirement that before a review panel can exercise the power conferred on it by s 58 of the Act, the requirements set out by s 55(4A) of the Act must have been met or complied with.

[30]    It is correct that s (4A) of s 55 of the Act is couched in the permissive language and not mandatory language. The reason for using the word ‘may’ is clear. The subsection 55(4A) is not imposing an obligation on the bidder, it is creating a right. The law cannot compel people to exercise or enjoy their rights. All that the law does is to create the right, and give persons the choice, whether they will or will not exercise the right. The fact that s 55(4A) of the Act grants a dissatisfied bidder the discretion whether or not to enforce its right does not take away the fact that if the bidder/tenderer decides to exercise his or her right he/she must still comply with the requirements of the legislation.

[31]    There is another reason why the decision in ABB Namibia Ltd v Central Procurement Board of Namibia Supra,[12] is of no assistance or application to the present matter. The Supreme Court in Wal-Mart Stores Incorporated v Namibian Competition Commission and Another,[13] reasoned that:

‘[45]   Ordinarily, the question whether an applicant will be required to exhaust internal remedies before approaching a court for relief, turns on the interpretation of the relevant statute … At times, a statute may expressly provide that an internal remedy must be exhausted before approaching a court. More commonly, though, the statute does not expressly insist that an applicant exhaust the internal remedy it provides before approaching a court. The question is whether the statute implicitly requires exhaustion of the internal remedy. The mere fact that a statute has provided an internal remedy is not generally sufficient to establish that it intended to insist that the internal remedy be exhausted before a court is approached for relief. More is required.’

[46]      In National Union of Namibian Workers v Naholo,[14] Tötemeyer AJ identified two considerations relevant to the determination of whether internal remedies should be exhausted. The first is the wording of the relevant statutory provision; and the second is whether the internal remedy would be sufficient to afford practical relief in the circumstances. In Naholo's case, Mr Naholo, the Acting General Secretary of the National Union of Namibian Workers, had been dismissed by the Union. A clause of the Union's constitution provided that Mr Naholo would have the right to appeal to the next national congress of the Union. Tötemeyer AJ observed that, national congresses only occurred every four years and that if Mr Naholo had to wait years to prosecute an appeal, he would be 'virtually remediless'. This consideration persuaded the court that the internal remedy provided by the Union's constitution would not provide effective relief, and therefore did not need to be exhausted before Mr Naholo approached the court.’

[32]    I am of the view that both ABB Namibia Ltd,[15] and Naholo,[16] are on their facts, distinguishable from the present matter. In the ABB matter, ABB was a disqualified tenderer - it applied to the public entity to reconsider its decision to disqualify it (ABB). The application for reconsideration was refused, and when that application for reconsideration was refused, ABB without applying in terms of s 59 of the Act, to the Review Panel for it to review the public entity’s refusal to reconsider its decision, applied for the review and setting aside of the public entity’s decision to refuse a reconsideration. The public entity, in its opposition, took the point in limine that ABB did not exhaust the internal remedies available to it. The factual scenario in Naholo is set out in the preceding paragraph.

[33]    The common denominator between ABB and Naholo is the fact that the point in limine pertained to approaching a court of law, whereas in the present matter the objection is not about Orcas approaching the court, but the Review Panel. The significance of this distinction lies in the fact that the High Court is not a creature of statute, but derives its powers and authority from the fundamental law of this Republic, whereas the Review Panel is a creature of statute established by s 59 of the Act. It is now a well-established principle of our law that a creature of statute is a decision-making functionary created by law, and its powers and duties emanate from and are limited to the provisions of its enabling legislation.[17]

[34]    The courts have now laid down the principle that if a decision-making functionary exceeds the powers conferred by the empowering provisions of a statute, that decision-making functionary acts ultra vires (beyond the powers) and in breach of the doctrine of legality. The public functionary, thus, acts in a manner that is inconsistent with the Constitution and his or her conduct is invalid.[18] The question, therefore, is whether the Review Panel had the power to hear the Orcas’ review application in the absence of an application by Orcas to the Fund for it to reconsider its decision of 7 December 2022, and not whether or not Orcas had a choice to first exhaust its internal remedies. The answer to this question must be sought in the empowering provisions of the Act. Before I answer this question, I briefly divert and deal with another argument relied on by Mr Shimutwikeni, and it is the argument relating to the functus officio principle.

[35]    It is common knowledge now that the Public Procurement Amendment Act,[19] introduced subsections (4A) to (4D) to s 55 of the Act. Prior to the introduction of those subsections, the opportunity to request the public entity to reconsider its selection for the award was only contained in the Regulations. This court found the Regulations to be ultra vires the Act.[20] In its finding that the Regulations were ultra vires the Act, the court said:

‘[36]     What Regulation 38(2)(c) then impermissibly does is to create a right for a bidder to request the board or a public entity to ‘reconsider’ its selection for the award within the standstill period. That right is not provided for in s 55(4). This in my judgment, and on the Moodley authority, amounts to impermissibly using Regulation 38 to enlarge the meaning of s 55 which was not provided for and not envisaged by the Legislature. If the Legislature intended to create such right for a bidder it would have done so in s 55(4) and in clear and unambiguous language.’

[36]     The legislature reacted to the judgment and created a right for a bidder to request a public entity to ‘reconsider’ its selection for the award by enacting s 55(4A) of the Act. Section 55(4A) now allows a bidder to advance further arguments after initial rejection by the public entity, and to request a public entity to reconsider its decision or put differently ‘to discuss or take up a matter again’.[21] The decision to reconsider by the public entity takes the form of a self-review – a consideration of a decision already taken.

[37]    In view of what I have stated in the preceding paragraphs, I have come to the conclusion that Mr Shimutwikeni’s reliance on the functus officio and the nemo iudex in sua causa (no man/woman must be a judge in his or her own cause) principles is misplaced. I say so for the following reason, in Hashagen v Public Accountants' and Auditors' Board,[22] the Supreme Court opined that:

‘[27]        An administrative decision is deemed to be final and binding once it is made. Once made, such a decision cannot be re-opened or revoked by the decision maker unless authorised by law, expressly or by necessary implication. The animating principle for the rule is that both the decision maker and the subject know where they stand. At its core, therefore, are fairness and certainty’. (My underlining)

In the present matter the legislature has specifically empowered a public entity to reconsider a decision if so requested by a dissatisfied bidder/tenderer.

[38]    Mr Shimutwikeni’s argument that the ‘Review Panel exercised its discretion and took a decision that the letter dated 15December 2022 is an application for reconsideration’ is fallacious. I say so for the reason that the Review Panel did not have a discretion to decide whether or not there was an application for reconsideration by a dissatisfied bidder. The Review Panel was in law required to make a determination whether or not, objectively viewed, certain facts existed before it could exercise the statutory powers conferred on it by legislation.

[39]    The determination of whether or not, objectively viewed, those facts(that is an application for reconsideration) exist must not be confused with other discretionary powers given to decision-makers where a mere subjective belief or value judgment as to a state of facts is all that is required before a decision can be made. This is where Mr Shimutwikeni goes wrong, as he confuses the two. I am therefore of the view that the matter of Kapika and Others v Kapika,[23] where the Supreme Court said ‘a review court should not exercise its review power by substituting its own discretion for that of the administrative official whose decision is reviewed’ does not find application.

[40]    The conclusion that I have arrived at is that s 55(4A) read with s 55(4D) and 55(5) sets out a requirement or what may be termed a condition precedent (jurisdictional facts) for the exercise of the statutory power by the Review Panel, brings me to the question whether Orcas’ letter of 15 December 2022 was an application by Orcas to the Fund for the Fund to reconsider its decision of 7 December 2022. It is to that question that I now return.

[41]    In contending compliance, Orcas refers to its letter of 15 December 2022. I have earlier,[24] in full, quoted the content of the letter of 15 December 2022. The essence of that letter is contained in paragraph 6 of the letter. In that paragraph Orcas:

1. conveys it is, dissatisfied with the selection for award under Africa Equity, to the Fund,

2. demands the scoring sheet for all bidders that made an offer under Africa Equity,

3. demands that the Fund provides it with an explanation detailing why two bidders were selected for award under SA ILB 10/15 Years and SA Equity, while for Africa Equity, only one bidder was considered, and

4.  requested the scoring sheet of all bidders that made an offer under the SA ILB 10/15 Years and SA Equity asset classes.

[42]    Adopting the approach set out by the Supreme Court to the interpretation of a legal document, I am of the view that, the contents of Orcas’ letter of 15 December 2022 are clear and invite of no ambiguity. The letter is a registration of dissatisfaction, a demand for clarification, and a request or demand for certain documents. It is not a request for the reconsideration of a decision by the Fund.

[43]    I now return to the question I posed earlier, namely, whether or not the Review Panel had the power to hear Orcas’ review application in the absence of an application by Orcas to the Fund for it to reconsider its decision of 7 December 2022. I have in this judgment demonstrated that properly interpreted, s 55 of the Act, creates a right for a dissatisfied bidder/tenderer to request a public entity to reconsider its decision to award a bid to a given bidder and creates an obligation on the public entity to hear the application for reconsideration. The Act in s 55(5) empowers a public entity to, in the absence of an application for reconsideration as contemplated in s 55(4A), award the procurement contract to the successful bidder. I have thus come to the conclusion that the provisions of the Act do outline the powers of the Review Panel.

[44]    In my view, the provisions of s 55 of the Act makes the existence of an application for reconsideration of a decision of the public entity a condition precedent for the Review Panel to review the decision of a public entity. It follows that in the absence of an application for reconsideration as contemplated in s 55(4A), the Review Panel has no power to review the decision of a public entity. It thus follows that in the present matter the Review Panel had no power to review the decision of the Fund and the Review Panel acted ultra vires when it did so, and its decision is thus liable to be set aside and is hereby set aside.

Urgency

[45]    I indicated earlier that, in its founding affidavit, Orcas denied that this matter is urgent. That denial was not persisted with at the hearing of the matter. I have taken into account all the contentions in this regard and am of the view that the Fund has satisfied me that the application was urgent.

Costs

[46]    The principle normally applicable to such matters, is that costs follow the event. In the premises, there is no reason suggested or apparent, that would require a departure from that beaten track. Orcas is thus ordered to pay the costs of this application.

Order

[47]    The inevitable consequence of the reasoning, findings and conclusions reached in this judgment, is that the application for review must succeed. I, therefore, make the following order:

1. The applicant’s (that is, the Motor Vehicle Accident’s Fund) non-compliance with the Rules of this Court is condoned and the forms and service provided for in the Rules is dispensed with and this application is heard on an urgent basis as provided for in rule 72(3) and (4) of the High Court Rules.

2. The service of the application in this matter on the 4th respondent, 11th respondent, 19th respondent, 20th respondent, 21st respondent, 24th respondent, and 25th respondent in a manner other than that contemplated in Rules 8 and 11 of the Rules of Court is condoned.

3. The decision by the first respondent (that is, The Public Procurement Review Panel) delivered on 27 January 2023 (“decided on 17 January 2023”) is reviewed and set aside.

4. The second respondent (Orcas Investment Managers (Pty) Ltd) must pay the applicant’s costs of the application.

5. The matter is regarded as finalised and is removed from the roll.

____________

SFI Ueitele

Judge

APPEARANCES:

APPLICANT:                               N Marcus

                                                  Of Nixon Marcus Public Law Office, Windhoek

SECOND RESPONDENT:           H Shimutwikeni

Of Henry Shimutwikeni & Co Inc., Windhoek