CASE NO. P I 2765/2003

IN THE HIGH COURT OF NAMIBIA

In the matter between:

INTERNATIONAL BUSINESS BUREAU (PTY) LIMITED Plaintiff

and

GOVERNMENT OF NAMIBIA

(PRIME MINISTER'S OFFICE) Defendant

CORAM: HINRICHSEN, A.J.

Heard on: 03/06/2008

Delivered on: 12/9/2008

JUDGMENT:

HINRICHSEN, A .J:

[1] In December 2007 judgment was delivered upon the Defendant’s application for absolution from the instance against the Plaintiff (the absolution Judgment). I ruled against the Defendant and the matter proceeded to the end of the Defendant’s case. The Plaintiff claims:-

“1. Payment by the defendant of the amount of N$1,472,870.00 to the plaintiff;

2. Interest on the amount of N$1,472,870.00 at the rate of 20% per annum from date of order to date of payment;

3. Costs of suit.”

The Defendant moves for the Plaintiff’s claims to be dismissed with costs.

[2] In the conduct of this case I have been provided with and relied on the transcript of the record, the pleadings consisting of two bundles labelled Pleadings and Notices and a Lever Arch file containing tagged and numbered documentation.

Defendant’s Counsel invited me to read the Record. This I did. The transcript of the remaining portion of the Record, page 267 to page 427 only reached me on Friday, 8^th August 2008, hence the delay in delivering this judgment. The quality of the transcript leaves much to be desired. Greater care should be taken to ensure accurate transcribing especially of names and spelling.

[3] The facts of this case have already been clearly and concisely summed up by my brother Mtambanengwe A.J. in his judgment delivered on 28/11/2005 (Case No. I380/2005) (the Exception Application) and I have added a further summary in the Absolution Judgment which makes it unnecessary to summarise the facts again.

[4] It needs to be pointed out that the Absolution Judgment must be evaluated in the light of the applicable prima-facie-case-test. By way of illustration reference is made by Plaintiff’s Counsel in support of his concluding arguments after the Defendant’s case to the following passage on page 26 of the Absolution Judgment:

“Omar representing the Plaintiff was entitled to either assume that the replacement page 3 (Record p.119) did away with the Tender Board condition or did not longer cast the duty of obtaining an import permit on the Plaintiff.

This could also lead to the reasonable assumption that the import permit was now the responsibility of the Defendant

The fact that Omar nevertheless took extra precaution of ascertaining the true position in regard to an import permit and receiving seemingly conflicting information from the Defendant’s employees should not at this stage enter the enquiry.”

The Plaintiff was given the benefit of the prima-facie-test in this passage. For purposes of this judgment which is based on the hearing and presenting of the evidence of both parties and the arguments by Plaintiff’s and Defendant’s Counsel at the end of the Defendant’s case this passage has no value. At the present stage the balance-of-probabilities-test applies.

[5] The arguments by Counsel for the parties are in essence conveniently contained in their Heads of Argument. Since this matter is not free of complications and the approaches to it by counsel are diametrically opposed to an unusual extent I find it useful to refer thereto in more detail. Therefore the Heads of Argument of Counsel for the parties are embodied.

Relevant extracts from the Plaintiff’s Heads of Argument are as follows:

"1. The facts of the matter are largely common cause. The defendant admits the following allegations made by Plaintiff:

1. 0. 0. 0. 0. 1.1 on or about 22 April 2003 the plaintiff was invited to submit a quotation on or before 30 April 2003 in terms of the attached Specifications and Conditions to the Tender Board of Namibia for the supply of white maize meal on behalf of the Emergency Management Unit, which resorts under the office of the Prime Minister of defendant.

1. 0. 0. 0. 1.2 on or about 28 April 2003 and before the closing date of the quotations called for, the Tender board of the defendant informed the plaintiff in writing to the effect that the Specifications and Conditions had been amended by deleting the requirement in paragraph 11.1 thereof, namely that: “Quotations should meet the requirements of the Namibian Agronomic Board in respect of permits for the import of maize meal.”

         1.  

   1. 1.3 on 30 April 2003 the plaintiff submitted its quotation in terms of the invitation to it of 22 April 2003, as amended on 28 April 2003, A copy of plaintiff’s tender is annexed hereto as annexure ‘C1”;

1. 0. 1.4 on or about 19 May 2003 the plaintiff was informed in writing by the Tender Board of defendant that its tender was successful for the following:

1.4.1 Caprivi Region 858 metric tones (mt)

1.4.2 Otjizondupa Region 483 mt

1.4.3 Kavango Region 500 mt

1.5 as a result of the tender awarded to the plaintiff a contract came into existence between the plaintiff and defendant on the basis and on the terms and conditions, as amended , for the delivery of the maize meal;

1.6 the following order for the maize meal were issued by the defendant’s Emergency Management Unit to the plaintiff on 21 May 2003 in respect of the contract between the parties:

1. 6. 1. Order no. 981017 for 858 mt – N$ 2 132 988.00;

      2. Order no. 981019 for 483 mt – N$ 1 297 338.00;

      3. Order no. 981018 for 500 mt – N$ 1 443 000.00.

Copies of the said orders are annexed hereto as annexure ‘D1” to “D3”,

1. In paragraph 10 of the plaintiff’s particulars of claim it is alleged that:

“It was an express, alternatively implied, alternatively a tactic term of the contract between the parties that it was not a requirement of the contract that the plaintiff would need an import permit or permits in respect of the maize meal to enter the borders of Namibia, alternatively that the defendant would be responsible to arrange for the entrance of the vehicles conveying the maize meal into Namibia, with or without permits.”

2. In the alternative to the above, the plaintiff relies on delict (particulars of claim, par 8). This is clearly based on the negligent conduct of plaintiff, causing the plaintiff to suffer damages."

The Defendant’s Heads of Argument are in essence repeated below up to and including paragraph 30 page 7. Pages 8 to 30 deal with the Defendant’s three Special Pleas, the subject of the Exception Application.

"1.

Distilled to its essence plaintiff’s case is that because the general remarks in an invitation to tender were amended it was a term to the ultimate agreement to deliver maize meal that plaintiff would either not need an import permit for maize meal coming from South Africa, or defendant would be responsible to arrange for the trucks conveying the maize meal to enter Namibia. Because it turned out that a permit was necessary and the trucks were refused entry into Namibia defendant allegedly breached the agreement and plaintiff suffered damages. Pleadings p 104 – 109

2.

In the alternative plaintiff relies on the same fact for a delictual claim of fraudulent or negligent misrepresentation to induce plaintiff to enter into the contract. Pleadings p 109 – 111

3.

It should be mentioned that further particulars were requested twice and the particulars of claim were amended twice. In the first request plaintiff was asked whether it knew import permits were necessary & whether steps were taken to ascertain whether the necessary exemptions were obtained from the Agronomic Board? The answer to both questions was yes, but detail was refused in respect of the latter. Pleadings p 25 &32, 33

4.

In the second request for further particulars plaintiff was again asked whether it knew a permit was necessary. This time it answered No! It also confirmed it enquired at the Agronomic Board at around 21 May 2003, but refused to disclose the outcome of the enquiry. Pleadings p 73, 75 & 80, 81

5.

Plaintiff also clarified its delictual claim in its further particulars by alleging that Ms Onesmus and Mr Kangowa mislead Mr Omar by telling him import permits were not necessary while they knew it was necessary and thereby fraudulently or negligently induced plaintiff to act to its detriment. Pleadings p 80. See also the amended further particulars at p128-135

6.

Defendant’s response to this is a special plea which essentially amounts to an assertion that in law the particulars of claim do not disclose a cause of action. Pleadings p 147 – 152. This is addressed in detail supra.

7.

Defendant also raises the non-joinder of the Agronomic Board. The non-joinder of the Tender Board is not pursued. The counterclaim was also abandoned. Pleadings p 153

8.

In its plea on the merits defendant denies the term of the agreement alleged by plaintiff and any breach. It also denies the allegations regarding misrepresentation and pleads plaintiff knew, alternatively could easily establish that permits were necessary. It also puts the damages claimed in issue and pleads plaintiff caused its own damages by failure to obtain the permits. Pleadings p 54 & 155,156.

ONUS

9.

It is submitted that it is trite that plaintiff bears the onus in its entirely.

THE ISSUES

10

It is submitted that this matter can be resolved on two issues:

10. 1. Whether in law plaintiff has a claim either in contract or delict on the facts alleged by it? This is addressed by the special pleas. It is submitted the answer to the question is no; and

10. 2. Whether on the facts presented during the trial plaintiff proved his case on a balance of probabilities. Again, the answer is no. It is submitted the crisp question is whether Mr Omar knew he needed a permit and that he did not have it when he chose to dispatch the trucks.

THE FACTS

11.

Mr Omar testified that when he received the tender document around 23 April 2003 he called Ms Onesmus of the Tender Board to enquire about the reference to the Agronomic Board’s requirements for permits to import maize meal. See also: Pleadings p 116 & 119

12.

Ms Onesmus told him, according to him, this requirement was waived. He received an amended document without this reference on 28 April 2003. He says he verified that this with Mr Kangowa of EMU.

13.

Ms Onesmus testifies that she does not recall the conversation and adds that it is unlikely because she does not discuss the contents of tenders with tenderers, it is not her domain. Mr Kangowa is adamant that he in fact told Mr Omar he needs a permit. He denies ever telling Mr Omar that permits were not required. Evidence is also presented to the effect that steps were taken to assist to obtain the permits.

14.

Mr Omar testified that he received notification that his tender was accepted on or about 19 May 2003. He acknowledges that this acceptance did not bring an agreement to bear. The issue of the orders on 22 May 2003 concluded the agreement. He also acknowledged that it is conceivable that after the acceptance of the tender a new agreement can be entered with the actual government entity. It is submitted this is borne out by the notice by the Tender Board dated 19 May 2003. This document makes it clear that the award to the tender is subject to a government order or the conclusion of an agreement with the Ministry concerned. Pleadings p 123

15.

It is submitted this notice renders the content of the tender document, and communications around it, largely irrelevant and renders very important what Mr Omar knew, or should have known subsequently.

16.

Mr Omar further testified that he was alerted to the fact that an exemption certificate and import permit was required on 21 May 2003. Bundle of documents: document 15

17.

On the same day he contacted Mr Araeb of the Agronomic Board and also met with him – asking for a permit to be issued. At that point the trucks had not left and would have been ready to do so in the next week. See also Bundle of documents 16 & 37

18.

Mr Omar is vague about what Mr Araeb told him. It is understood that his testimony is that Mr Araeb said he does not know about any emergency relief exemption.

19.

Mr Araeb testified that he told Mr Omar in no uncertain terms he needs permits and that it is unlikely he would get it. He also told him that the only entity that can decide on the permits is the Agronomic Board. It is submitted that the attempts to show that Mr Araeb was unaware of the emergency relief situation is neither here, nor there.

20.

The point is Mr Omar knew as a fact on 21 May 2003 that he needed a permit (See Bundle of documents, 37 – on his own, slightly adjusted version of the truth) and he could not have been sure whether or not he would get it. In fact, he pursues the avenue of applying for a permit, which as we now know was refused on 11 June 2003.

21.

On 22 May 2003 he received the exemption certificate for VAT purposes. He also obtained the orders on that date, but he did not have the import permits, which he knew he needed. Bundle of documents: document 21 & pleadings p 124-126

22.

It is submitted the issue of the orders on 22 May 2003 constitute the entry of the agreement on which plaintiff relies for this action. Therefore to contend that it was a term of the agreement that he would not need an import permit is ludicrous. Similarly any misrepresentation – assuming it was made – prior to 21 May 2003 clearly cannot be relied on.

23.

With the knowledge that he needed a permit Mr Omar continued arranging for the maize meal to be dispatched. Bundle of documents: documents 23, 25 26 and 27.Significantly, despite the enquiry about import permits from SASKO on 21 May 2003, he did not disclose that he needed permits and that he did not have them on 27 May 2003 (document 26) when he communicated with SASKO to dispatch the trucks.

24.

The first trucks arrived at Nakop on 30 May 2003 and – predictably – were refused entry because permits from the Agronomic Board were required (Bundle of documents: document 37). Then Mr Omar started contacting all and sundry. The defendant made every effort to assist in getting the Agronomic Board meet and decide on the permits. The point is Mr Omar should have waited with the dispatch of the trucks until he went through the permit application process.

25.

As late as 8 October 2003 the Office of the Prime Minister informed Mr Omar that he was given until 8 November 2003 to deliver his maize meal. In response his lawyers wrote a letter on the same date claiming damages. Bundle of documents: document 82 & 83. This demonstrates that the delivery of the maize meal could have been deferred pending the outcome of the Agronomic Board’s decision in May/June 2003.

26.

Furthermore, Mr Omar testifies that he has expertise in import and export and in dealing with governments in procurement. Therefore, his claim to have been mislead should be rejected. “The law presumes, without proof, knowledge of all facts which, in the course of his business, the party ought to be acquainted with”, quoted in ANDERSON SHIPPING (PTY) LTD V GUARDIAN NATIONAL INSURANCE CO LTD 1987(3) SA 506 (A) at p 516; In VAN NIEKERK AND ANOTHER V FAVEL AND ANOTHER 2006 (4) SA 548 (W) the following was said at paragraph [32]:

“This doctrine still holds good of a person who, in a modern state, wherein many facets of the acts and omissions of legal subjects are controlled by legal provisions, involves himself in a particular sphere, that he should keep himself informed of the legal provisions which are applicable to that particular sphere.”

FACTS DO NOT SUSTAIN CLAIMS

27.

Plaintiff’s main claim is contractual. Mr Omar says that the defendant expressly agreed that the permit requirement would be waived. He relies on the removal of the reference to the permit and representations by Ms Onesmus and Mr Kangowa.

28.

It is submitted that he expects the court to imply that these facts introduced a term to the effect that he would not need a permit issued by Agronomic Board to import his maize. This is untenable, because apart from being presumed to know of the applicable legal provisions, he was made aware on 22 April 2003 of the existence of the Agronomic Board and import permits.

29.

Furthermore, and fatally for his case, on 21 May 2003, before he received his order, it was conveyed to Mr Omar in no uncertain terms that the Agronomic Board, a separate entity from the Tender Board, and EMU, was responsible for permits and that he needed it to import the maize meal. He in fact requested the board’s official to give him the permits. If this is accepted, plaintiff’s claim has no factual basis.

30.

It is submitted that on this basis the plaintiff claims should be dismissed with costs."

So far the case presented by both parties.

[6] Following upon the Special Pleas the Defendant pleaded to the merits.

In all three Special Pleas the Defendant seeks to knock out the Plaintiff’s claim by praying for its dismissal i.e. Defendant seeks a final remedy. This is refused in the Exception Application. Strictly speaking the issues raised in the three Special Pleas are res judicata. However, exceptions are interlocutory in nature and are therefore non-appealable. Moreover exceptions will fail where evidence would ultimately disclose a course of action not fully appearing from the pleadings enabling a Court to consider all the circumstances of a case. On this basis the Defendant’s Exception Application failed. The evidence required to reconsider the issues named in the exception has now been presented and analysed and, these issues now again form part of the Defendant’s case as they did at the absolution stage.

[7] I find that the facts presented in evidence exclude the following issues –

Illegality – No illegal act was committed. The trucks transporting the maize meal ordered by the Plaintiff remained at the border. Had they crossed the border into Namibia an offence would have been committed. By factual contrast an offence was committed in the case of Savage and Lavermore Mining (Pty) Ltd vs International Shipping Co (Pty) Ltd 1987 (2) 149 (W) cited by Plaintiff’s counsel where two vessels had left port thereby creating the offence in issue in that case.

Supervening impossibility This issue is raised in Plaintiff’s Heads but has no factual basis. The impossibility complained of is that of the Plaintiff not being able to obtain a permit for the import of maize meal. That impossibility existed all along; it did not subsequently appear. It is as Defendant’s counsel advanced in his argument a self imposed impossibility allegedly discovered and dealt with too late by the Plaintiff.

Review of the decision of the Namibia Agronomic Board (the Agronomic Board)

This was argued by Defendant’s counsel. The evidence reveals that there is no scope and there are no prospects of taking the Agronomic Board on review. It is speculation and taken in the comfort of hindsight.

The witness Brock testified that not even in the case of the application for an import permit for maize meal by the United Nations World Food Programme in support of a refugee feeding programme did the Agronomic Board depart from the status quo of the general ban on imports of maize meal. By distinction the import of maize grain, unprocessed maize was and is permitted by the Agronomic Board. The policy behind the ban on the import of maize meal is the protection of the local Namibian milling industry. Although the impossibility of obtaining a maize meal import permit is relative in nature, it being subject to the Minister’s consent, the rigidity of the policy also illustrating the autonomy of the Agronomic Board is the absence in the Agronomic Industry Act No. 20 of 1992 (the Act) of any provision for appeal against the Minister’s decision refusing maize meal import.

Initially the Defendant raised Non-joinder of the NAB in the form of a Special Plea which it since abandoned. It relates like his review argument to civil court procedure and is not an argument in substance. The test for non-joinder is not whether the party to be joined is “an essential party” as Defendant’s counsel argues.

“The right of a defendant to demand the joinder of another party and the duty of the court to order such a joinder or to ensure that there is waiver of the right to be joined are limited to cases of joint owners; joint contractors and partners; and cases in which the other party has a direct and substantial interest in the issues involved and in the order that the court might make, in other words, to cases in which joinder is essential. The right to object that other parties have not been joined is therefore very limited, being confined to the abovementioned categories.”

(Kock & Schmidt v Alma Modehuis (Edms) Bpk 1959 (3) SA 308 (A) at 318G and footnote 171.p.188).

The Civil Practice of the Supreme Court of South Africa, Fourth Edition (Herbstein and Von Winsen) p 187 – 188.

The Defendant’s non-joinder issue is rightly not pursued by Defendant. It would have been dismissed on the above grounds.

[8] What remains is to test the Plaintiff’s case in the light of all the evidence and arguments presented by both parties. In what follows the references to the Plaintiff and its sole representative and witness Mr Omar are too a large extent interchangeable.

In testing so I am bearing in mind firstly the issue raised by Plaintiff’s Counsel of who the importer of the maize meal is. There is an immediate difference of opinion between the parties.

In his introductory summary of the Plaintiff’s case its counsel claims that “….Government was the importer of the maize not the Plaintiff”.

(Record p.8). “Maize” should read maize meal as has become clear in the course of the trial. This is illustrated by the Plaintiff’s attempt to prove that the Agronomic Board did issue import permits. However it turned out that these permits were issued for maize grain to Namibian Millers for processing into maize meal.

Defendant’s counsel argues that this is not so and in his oral summing up at the end of the Defendant’s case he submits that the Government was not the importer.

While the three purchase orders and claims forms issued the orders for the maize meal to I.B.B called the SUPPLIER the Defendant the Government did not thereby become “…responsible to provide the necessary permits.”(Record p.90). The Defendant simply wanted to be supplied with maize meal. It left the import of the maize meal to the Plaintiff. This appears from the tender invitation by the Tender Board it being common cause that the Tender Board represents the Defendant in this transaction.

How the supply of maize meal is achieved whether through local sources or from elsewhere or whether by import or from local sources is not the Defendant’s concern.

If as the Plaintiff alleges the Defendant was the importer of the maize meal the producer and supplier SASKO and the transporter DAS Logistics (DAS) should have communicated with the Government the Defendant directly making the Plaintiff redundant.

The contact to the producer of the maize meal and to DAS was established by the Plaintiff in the past. The evidence reveals that the Plaintiff had prior dealings with SASKO in regard to maize meal which it had imported to Angola and the Democratic Republic of Congo and other products which it imported before having received the present order for maize meal. Had the Defendant been the importer of the maize meal the Plaintiff’s task would have been an easy one; the obligation to clear the way for import i.e. to obtain an import permit would have squarely rested on the Defendant leaving the Plaintiff simply to earn its profit on the transaction.

In cross-examination the Plaintiff’s Mr Omar underlines the convenience of claiming the Defendant to be the importer of the maize meal.

“…concerning supplying to the Government, the Government take responsibility by providing all the necessary exemptions, all the necessary permit.”

(Record p.89).

“I realized that they needed a permit from the Agronomic Board but I did not think that it was to be difficult for the Government to arrange that permit if required.”

(Record p.93).

Omar also lectures that “…..as the Government gives order the Government is responsible to provide all the necessary permits.”

(Record p.90).

I find that the Government the Defendant was not the importer of the maize meal. The importer was the Plaintiff.

[9] In its amended particulars of claim the Plaintiff’s basis for its claim has now been narrowed down to its allegation that the Defendant’s officials had acted in the course and scope of their employment, causing the Defendant to breach the contract by misrepresenting to the Plaintiff’s Mr Omar (Omar) that an import permit was not required or that the requirement had been uplifted under the emergency drought situation or that it was the duty of the Government the Defendant to obtain an import permit. In the alternative the Plaintiff bases its claim on delict alleging that the Defendant owed the Plaintiff a duty of care not to misrepresent to the Plaintiff that an import permit was not necessary and for that matter, the Defendant would be able to lift the requirement for an import permit.

In the upshot the factual basis on which the Plaintiff relies exclusively is the subsequent removal in effect of the prior insertion under paragraph 11.1 “General Remarks ”of the tender invitation being the third paragraph thereof. That general remark reads as follows:-

“Quotations should meet the requirements of the Namibian Agronomic Board in respect of permits for the import of maize meal.”

The communication by fax to this effect by the Tender Board to the Plaintiff requests the Plaintiff “……to please replace page 3 of the fax as it contain errors.” It does not say what these errors are. It however points to the omission of the reference to an import permit previously included. I shall henceforth refer to this occurrence in short as "the omission".

[10] Secondly the issue of Omar in his capacity as an expert is relevant to the enquiry since this affects the Plaintiff’s burden of proof, the onus it has to discharge. Counsel for the Defendant points out in his argument and this is not opposed by Plaintiff’s Counsel that the onus in this matter is on the Plaintiff. I agree that the onus is on the Plaintiff to prove its case on a balance of probabilities.

Omar features as an expert in terms of the Plaintiff’s notice under Rule 36(9)(a) and (b). The summary of his expertise is confined to monetary issues. However in cross-examination Mr Omar extends his expertise. Aside from stating that “……A businessman knows what he is doing” he states that he is an expert in export, import transportation of goods “whatever is required by the Government like food, uniforms, military requirements, backpacks, sleeping bags, tents, ration bags with food being supplies to the Government and to other Governments like Angola and the DRC in 2001 and 2002. (Record pages 85 – 88).

Omar by this testimony also reveals the extent of his practical experience.

This is borne out on the Plaintiff’s letterhead which specifies “Import – Export – Finance – Supply.”

The “expert” quality and qualification Omar professes to possess beyond the confines of Rule 36 has its ordinary meaning as defined in the Shorter Oxford Dictionary where “Expert” is defined as “one who is EXPERT” which in turn is defined as “having experience” – “Tried, proved by experience.”- Expertise is therefore directly linked to experience.

“The opinion of expert witnesses is admissible whenever, by reason of their special knowledge and skill, they are better qualified to draw inferences than the judicial officer. There are some subjects upon which the court is usually quite incapable of forming an opinion unassisted, and others upon which it could come to some sort of independent conclusion, but the help of an expert would be useful. There is no purpose in attempting to draw up a list of cases in which the courts have received expert evidence since not only are the possibilities inexhaustible, but the need for such evidence may vary with changes in public knowledge.”

(South African Law of Evidence. Hoffmann Second Edition page 78.) This passage fits the position and description of Omar in his role as expert.

Omar representing the Plaintiff is an expert in the Plaintiff’s own cause. This must reflect on the onus the Plaintiff has to discharge to prove its case. The burden of proof for the expert becomes heavier and more onerous to discharge than for a non-expert, a layman facing and dealing with the same circumstances.

[11] In applying my finding that the Government was not the importer of the maize and the expert-onus-of-proof resting on the Defendant, I revert to the chain of events presented in evidence and the presenters thereof, the witnesses.

By fax on 23^rd April 2003 the Defendant received the tender invitation by the Tender Board of Namibia (the Tender Board). It appeared on that fax that the person to direct enquiries to was Ms M Onesmus the Secretary of the Tender Board (Onesmus). Thereafter by undated fax bearing a dispatch imprint “APR.28 2003” the replacement page referred to above was received by the Defendant.

Omar testified that upon receiving the fax on 23^rd April 2003 he telephoned Onesmus to enquire about the omission. This portion of the evidence of Omar is recorded in transcript as follows:-

“Now, what about that was not clear? --- Okay. When I read this I did not act I phoned Tender Board: “What is that? Do I have to act on that? “No, it will be removed.” So it was ended there and I said: “Please we need it in writing before we enquire what is this Agronomic Board: “No, Mr Omar, it’s not important because for the drought relief, the tender conditions they don’t require that. Then of course there was no reason to contact them at that point.”

(Record page 97).

[12] Onesmus’ version differs. The gist of her evidence is that she has been working at the Tender Board for seven years administering the functions of the Tender Board. The documents relating to the omission emanated from the Emergency Management Unit resorting under the Prime Minister’s Office (the EMU) and she simply transmits such documents as requested by the Ministry in this case the Ministry of Finance whereunder the Tender Board resorts.

Onesmus stressed that knowledge of the contents of documents which she transmits is not in her jurisdiction. She was not in a position to explain the omission. She said verbatim:-

“Actually I will not be able to say in general what is but my understanding from whoever have prepared this is for the tenders either to apply to those requirements or to meet those requirements or to acquaint themselves what is required from this document coming from that particular unit.”

(Record p.348).

Onesmus denied that she made a representation to Omar that plaintiff need not comply with the Tender Board requirements to import maize meal. In cross examination Onesmus is adamant that she did not give any interpretation of paragraph 11.1 to anybody. She stated:-

“I did not give any interpretation of this clause to anybody because this document came from EMU, the enquiry person is clearly indicated on the document that it is EMU and I am not responsible for knowledge of permits whether it is needed or not.”

(Record p. 354).

Onesmus further stated that she would have referred Omar’s enquiry to the EMU.

Her statement is supported by the Plaintiff’s legal practitioners Conradie & Damaseb in a letter to the Chairman of the EMU and the Secretary of the Tender Board dated June 26, 2003. The letter states:-

“……….our client’s Mr Omar called Ms Meriam Onesmus of the Tender board to enquire about the import of this latest development. She advised our Mr Omar that the change was asked for by the EMU. Mr Omar then contacted Mr G K Kangowa of the EMU …..”

No allegation is made in the letter that Onesmus like Kangowa made representations or gave any information or explanation to Omar as he claims she did. Omar by contrast states that having spoken to Onesmus he didn’t investigate what it was all about. He claims to have asked Onesmus specifically what the Agronomic Board was all about.

I accept the version of Onesmus as more probable than that of Omar.

[13] Following up the answer which Omar claims he received from Onesmus namely that Omar should forget about the Agronomic Board referred to in the omission he nevertheless contacted Mr Kangowa, Deputy Director and as such Head of the EMU (Kangowa), Omar claims to have contacted Kangowa one or two days after 23^rd April 2003 before he quoted to the Tender Board.

The evidence involving Omar and Kangowa is also in dispute. Omar claims to have seen Kangowa “over ten times”.

Kangowa states that he met Omar once on the 22^nd May 2003 apparently when Omar came to fetch the Government Orders for the maize meal.

As in the case with Onesmus, Omar passed all responsibility on to Kangowa regarding the maize meal import situation. He claims that Kangowa told him that the import permit requirement had been waived. Because of the drought relief situation “….there is no requirement from the Agronomic Board ….” (Record p. 22).

In his evidence-in-chief Kangowa testifies that he held the position of deputy director since 1997.

Regarding his dealings with Omar surrounding the maize meal tender, he confirmed that the tender invitation emanated from the EMU and that he assisted Omar at the latter’s request with contact person at the delivery point, for the maize meal, the location of warehouses for its storage and sending that information to the border by fax.

Kangowa enquired why it was necessary to send such faxes to the border. Omar replied “..because my maize meal is coming from South Africa.” Kangowa’s recorded reaction was:-

“Well, my respond was will it be possible for you to bring in maize meal from South Africa then Mr Omar told me yes, because I had a meeting with Agronomic Board they promised to give me a permit to bring in the maize meal.”

(Record p. 277 )

Kangowa denies having made (mis)representation to Omar as Onesmus had apparently also made, adding that he and Onesmus were not responsible to deal with permits. He also stated that the EMU can in no way influence the issue or non-issue of permits.

[14] During the period 23^rd April to 21^st May 2003 there is no evidence that Omar pursued investigations regarding an import permit directly with the Agronomic Board.

It is clear that from 23^rd April 2003 he knew about the existence of the Agronomic Board.

On 15^th May 2003 the Plaintiff was partially awarded the tender it quoted for i.e. for the regions Caprivi, Otjozondjupa and Kavango.

On 19^th May 2003 SASKO, the South African millers confirmed the Plaintiff’s order to mill maize meal for those regions.

On 21^st May 2003 SASKO advised the Plaintiff per fax as a first requirement that it required a “Customs Import Permit”.

[15] By letter on the same day, Omar followed up the issue of the Customs Import Permit by applying therefor first in person and later on the same day in writing in both instances addressing the inspector of the Agronomic Board, Mr Araëb (Araëb) because he had in the morning of that day already advised Omar of the unlikelihood of obtaining an import permit. Araëb is referred to a letter by the Agronomic Board written to the Plaintiff dated 3^rd June 2003 “to clear the issue” (Record p.366). Again the white maize meal import ban being the policy of the Agronomic Board is confirmed. This letter followed a meeting on 2^nd June 2003 between Omar and the Chief Executive officer of the Agronomic Board. (Since 2001) Mr Brock (Brock) who in his evidence confirmed the 2^nd June meeting. He advised Omar that no maize meal was ever imported since inception of the Agronomic Board in 1985 (continuing its existence as a body corporate in terms of Section 3(1) of the Act.) This evidence withstood cross examination.

[16] Having been alerted to the existence of the Agronomic Board on 23^rd April 2003 and having been advised of the necessity of obtaining an import permit on 26^th May 2003 and having also applied for one in writing on that day Omar on the one hand continues to make arrangements with SASKO for the delivery of maize meal from South Africa.

On 22^nd May 2003 he applies for and obtains VAT exemption from the Ministry of Finance for the import of maize meal. By letters and faxes between 23^rd and 27^th May and on 30^th May 2003 he goes ahead with arranging the financing and delivery of the maize meal with SASKO and the Transport with DAS.

[17] On the other hand instead of following up the import permit issue with the Agronomic Board directly, Omar now by letter dated 22^nd May 2003 turns to the Ministry of Finance, Inland Revenue advising that the supplier requests an Exemption Certificate ”stating that the maize meal consignment is “free from all Taxes and Import Permit.” Accordingly the Plaintiff makes this request.

[18] Omar then turns to the EMU represented by its Deputy Director Kangowa by letter dated 28^th May 2003 advising that the trucks have been loaded. On page two of that letter he states the following:-

“You are therefore kindly requested, as a matter of urgency, to inform Custom Officials to assist these trucks at entry point as we are holding an Exemption Certificate from the Ministry of Finance for the importation of Maize Meal for the Drought Relief Programme.”

Omar makes Kangowa believe that the plaintiff holds an Exemption Certificate for the importation of maize meal bearing in mind that in terms of his application therefor it included an import permit. Omar does therefore not request Kangowa to obtain an import permit. He merely seeks Kangowa’s assistance to as a matter of urgency inform Customs Officials to assist the trucks at the entry points. Kangowa’s evidence bears out that he indeed so assisted the Plaintiff.

[19] As regards the maize meal transport on 30^th May 2003 seven trucks arrived at the Nakop border post and on 4^th June 2003 six trucks arrived at the Ngama border post (the consignments).

Omar could have stopped the consignments before departure as late as 28^th May 2003 at a stage when the trucks had not left SASKO’s Kroonstad mill according to SASKO’s fax to Omar of even date.

As at 23^rd May 2003 the trucks were not loaded. On 21^st May 2003 Omar knew of the import permit requirement and of the well-nigh impossible prospects of obtaining one. From this day onwards Omar assumed full risk for his actions following.

[20] As the expert he claims to be, “alarm bells”, as Defendant’s counsel put it, should have begun ringing on 23^rd April when he got to know of the existence of the Agronomic board. Instead, Omar as appears from his evidence, simply speculated as to its meaning and function. He says:-

“The Government has the right to appoint anybody, a body with the expertise to ensure that what you are supplying are the goods for human consumption. “

(Record p.90)

This Omar would have found at variance with the true function of the Agronomic board if he had made proper enquiry in this regard as he, being an expert, should have done.

Omar took the risk of proceeding with the implementation of the Plaintiff’s maize meal order regardless. He created self-induced urgency by permitting the consignment to reach the border.

[21] He could have mitigated the Plaintiff’s losses which he compromised with SASKO regarding the claim against the Defendant at two stages – at the milling stage from 23^rd April 2003 and at the loading and transport stage from 21^st May 2003. Once the consignment arrived at the two border posts Omar’s actions became desperate. He goes right up to the Prime Minister only to be re-directed ultimately to the Agronomic Board.

[22] At its extraordinary meeting on 11^th June 2003 commenced especially to consider permit applications by the Plaintiff and Golden Farm Produce (Pty) Ltd for the importation of white maize meal for the Government’s drought relief programme and by the United Nations World Food Programme for the import of the same product for purposes of a refugee feeding programme all three applications were refused by the Agronomic Board.

In the case of the drought relief applicants, including the Plaintiff the Agronomic Board’s reasoning is significant. This appears from the Minutes of the Meeting of 11^th June 2003:-

“(a) Since 1985, white maize meal was not allowed to be imported in order to protect the domestic agronomic industry against unfair competition.

2. The Board has established that there is currently enough domestically milled maize meal in Namibia to supply both the needs of the general trade and that of Government’s drought relief projects.

3. The Board has further established that Eagle Mills, operational in the Caprivi, is prepared to immediately supply approximately 200 ton of white maize meal (the first consignment of 6 trucks allegedly poised for the Caprivi by IBB) at the same price that has been quoted by IBB.

4. ……..

(e) As companies doing business in Namibia, the applicants should have known better and should have, despite of information obtained from Government officials, confirmed in advance with the Board on any possible relaxation of its status quo decisions prior to submitting their tender.

(f) If certain tenderers would be allowed to procure maize meal from South Africa, it would disadvantage other Namibian tenderers who based their tender prices on Namibian maize meal prices, knowing that there is a total ban on the importation of maize meal.

(g) ……..”

[23] With reference to the testimony and demenour of the witnesses I find that Onesmus, Kangowa, Araëb and Brock for the Defendant have withstood cross-examination relating to the evidence of their involvement in the chain of event.

They command many years of experience in their respective positions.

Onesmus served for 7 years

Kangowa since 1997

Araëb for 21 years and

Brock as C.E.O of the Agronomic Board since 2001.

Basically by reason of their long service record these witnesses proved their knowledge of the extent of their jurisdictions and llimits of their administrative functions.

Onesmus passes on queries to the author of the tender.

Araëb performs his duties as an inspector of the Agronomic Board dealing inter alia with imports and exports of controlled Agronomic Board products which includes maize meal.

He knows for sure that an import ban on this product exists.

This is confirmed by Brock who categorically imputed to Omar that he must have known about the need for an import permit.

[24] Kangowa may have made a doubtful assertion regarding the reason for the omission.

His reasons were firstly the knowledge that there was enough maize meal in the country for suppliers to purchase and secondly the ban on import was known to the EMU and was published in newspapers and he was not aware of “any company” importing maize meal.

In cross-examination he stated that he was out of office until one day before the omission. It was put to Kangowa that this explanation was an invention and when questioned about the origin of the maize meal being South African in the Plaintiff’s tender he said that he did not see the tender since it was forwarded directly to the Tender Board.

What is clear is that Omar was not made aware of Kangowa’s reasons for the omission.

[25] I now turn to Omar’s evidence. He was a single witness. The Plaintiff did not call other witnesses. The single witness situation does not detract from a witness’ credibility. At times Omar was argumentative and his demenour overbearing. Omar’s version of his communication with Onesmus Kangowa and Araëb is improbable to the extent that it contradicts their evidence on the same issues notably in regard to the representation they were supposed to have made to him regarding the import permit requirement and their assurance to him that the drought situation exonerated the Plaintiff or the Government from the import permit requirement.

[26] Under the circumstances I conclude that Omar’s version of events is less probable than those related by the defence witnesses. I find that the probabilities favour the Defendant. I find that the Plaintiff failed to discharge its onus of proof even more so on the basis of Omar’s claim to expertise and experience.

[27] Having made these findings I do not consider it necessary to rule on the following issues:-

Firstly whether the Government is above the law or is bound by certain legislation

Secondly whether Government employees or servants can effectively bind the Government by utterances or action; i.e. whether the Government is vicariously liable.

Thirdly the issue of the autonomy of the Agronomic Board and its position for misrepresentations made negligently or innocently either in contract or in delict vis-à-vis the Government.

Fourthly the issue of Omar settling the claim with SASKO and DAS.

[28] Plaintiff’s Counsel criticized the failure of Defendant’s Counsel to properly cross examine and in support he inter alia cited the following:-

“and as for failure to cross-examine, I refer to R v M 1946 AD 1023 at 1027; R v Qgatsa and Others 1957 (S) SA 191 (E); and Small v Smith 1954 (3) SA 434 (SWA) at 438F where it was said:

‘It is in my opinion elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness…It is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.”

See S v Ngoya, 2006 (2) NR 643 at 649.”

The passage cited from Small v Smith by Claassen J is obiter.

The criminal cases to which Plaintiff’s Counsel referred have less bearing on this matter in view of the heavier evidential burden involved in criminal cases. While I do agree that Defendant’s Counsel should have put more propositions to Omar and should furthermore have conducted a more intensive and searching cross-examination these failures do not ultimately affect my findings.

[29] In making my order I am guided by the following passages in Herbstein and Van Winsen.

“If the onus is on the plaintiff and the court concludes after hearing all the evidence by both sides that the plaintiff has failed to discharge the onus, the question arises whether judgment should be entered for the defendant or whether it should merely be one of absolution. The distinction is important, for in the latter event the plaintiff can initiate fresh proceedings without having to face a plea of lis finite or res judicata. The position appears to be that if the court has on the evidence found against the plaintiff, it is entitled to enter judgment for the defendant rather than grant absolution. It can in such an event never be bound to enter a judgment of absolution in preference to one in the defendant’s favour, but conversely it may be bound, if the defendant asks for it and the evidence warrants it, to enter a judgment in the defendant’s favour. (p.684 – 685).

“47. The balance of probabilities cannot be determined before the evidence of both parties has been adduced: Kau v Fourie 1971 (3) SA 623 (T)”.

Herbstein and Van Winsen (p 626.)

“48. Berkowitz v Wilson 1922 OPD 230 AT 231-2. But if some alternative course is open to the plaintiff, then, despite his failure on the issues raised on the pleadings, the court may content itself with granting absolution: Damont NO v Van Zyl 1962 (4) SA 47 (C).”

Herbstein and Van Winsen (p.684).

“49. Corbridge v Welch (1892) 9 SC 277 at 279. Should the court be unable to decide on which side the truth lies, absolution will be the correct judgment. Forbes v Golach & Cohen 1917 AD 59. See also Sager Motors (Pty) Ltd v Patel 1968 (4) SA 98 (RA) at 101.”

Herbstein and Van Winsen (p.685).

[30] Accordingly I make the following order:

Absolution from the instance with costs is ordered against the Plaintiff.

……………………………………

HINRICHSEN, A.J.

ON BEHALF OF PLAINTIFF ADV R HEATHCOTE

Instructed by: CONRADIE & DAMASEB

ON BEHALF OF DEFENDANT ADV. G COLEMAN

Instructed by: GOVERNMENT ATTORNEY