REPORTABLE CASE NO. SA 45/2008

IN THE SUPREME COURT
OF NAMIBIA

In the matter between:

and

Coram: Shivute CJ,
Maritz JA et Langa AJA

Heard on:
2010/03/26

Delivered on:
2011/06/09

_________________________________________________________________

APPEAL JUDGMENT

_________________________________________________________________

LANGA AJA

Introduction

1. 
   This is an appeal from
   the judgment and an order of absolution from the instance with costs
   made against the appellant, the International Business Bureau (Pty)
   Ltd, by the High Court of Namibia (per Hinrichsen AJ) on 12
   September 2008. The respondent, the Government of the Republic of
   Namibia, has also filed what it refers to as a cross appeal which is
   conditional upon this Court deciding to interfere with the judgment
   of the Court a quo. Nothing further need be said about the
   cross appeal as it was not pursued in this Court.

   
   

Factual Background

2. 
   The appellant claims
   payment of the sum of N$1 472 870.00 and costs from the respondent.
   The facts giving rise to the claim have been detailed adequately in
   the judgment of the Court a quo and what is set out below is
   a mere summary to facilitate a better understanding of the reasoning
   in this judgment. During or about April 2003 the appellant, whose
   managing director is Mr Omar, was invited to tender for the supply
   and delivery of white maize meal under a scheme run by a body
   referred to as the “Emergency Management Unit” (EMU)
   which is housed in the Office of the Prime Minister of Namibia. The
   tender had to be on a document issued by the Tender Board of
   Namibia. Details of the tender appeared under a heading
   “Specifications and Conditions”. Before the closing date
   for the submission of tenders, the appellant was informed in writing
   by the Tender Board that the tender document, containing
   Specifications and Conditions had been amended. The effect of the
   change was to remove that portion from the Specifications and
   Conditions that read: “Quotations should meet the
   requirements of the Namibian Agronomic Board in respect of permits
   for the import of maize meal”. Replacement
   pages incorporating the change were sent to the appellant who, on 30
   April 2003, submitted its quotation in terms of the invitation to
   it, as amended. The tender by the appellant was accepted by the
   Tender Board in respect of three regions, namely, Caprivi,
   Otjozondjupa and Kavango Regions, for the delivery of maize meal and
   the EMU subsequently issued the appellant with an order for the
   supply of the maize meal as tendered.

   
   

3. 
   On or about 30 May 2003,
   when trucks commissioned by the appellant attempted to cross the
   border into Namibia to deliver the maize meal, entry was refused
   because import permits, which should have been issued by the
   Namibian Agronomic Board (NAB), could not be produced. The appellant
   accordingly failed to deliver the maize meal. The appellant lays the
   blame for this failure to deliver in terms of the orders at the door
   of the respondent and hence the claim for damages allegedly suffered
   by the appellant. It should be noted that the claim for damages is
   directed solely at the respondent, the Government of Namibia, and
   that neither the Tender Board nor the NAB have been cited as parties
   in the proceedings. Respondent denies any liability for the damages
   claimed.

   
   

The essence of the
dispute

4. 
   The appellant’s
   case in the High Court and again on appeal is based on contract,
   alternatively delict. The alleged contract is described in paragraph
   10 of the appellant’s amended particulars of claim which
   state:
   

   
   

“It was an
express, alternatively implied, alternatively a tacit 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 to
Namibia, with or without permits.”

Put differently, the
appellant contends that the respondent breached the agreement between
it and the appellant by failing to ensure that such import permits as
were required were obtained or that delivery of the imported maize
meal was allowed to proceed without the formality of the issuance or
production of import permits. It is a matter of record that this is
the stance that the appellant adopted and maintained throughout the
proceedings. This much is clear from the pleadings and the helpful
judgment on exception of Mtambanengwe AJ, delivered on 28/11/2005
(Case No. 1380/2005). Appellant’s alternative claim is based on
delict and relies on the alleged fraudulent or negligent
misrepresentation by the officials of the respondent who, it is said,
misled the appellant, thereby inducing it to act to its detriment.

The question of
onus

5. 
   It is trite, as was also
   acknowledged by the Court a quo, that the onus was on
   the appellant to prove the agreement between itself and the
   respondent, as well as its terms. As far as the misrepresentation is
   concerned, the onus is likewise on the appellant to prove its
   case on a balance of probabilities. In its attempt to discharge the
   onus to prove the agreement and its terms, the appellant
   relied on the evidence of Mr Omar, who was its sole witness as well
   as inferences or conclusions to be drawn from the amendment to the
   Specifications and Conditions of the tender document and alleged
   conversations with officials in the employ of the respondent.
   

   
   

Who is the
importer?

6. 
   In setting the scene for
   the appellant’s case, it was contended by counsel for the
   appellant that the respondent, and not the appellant, was the
   importer of the maize meal. If the contention were correct, it would
   be in line with appellant’s interpretation of the agreement,
   namely, that the responsibility to obtain import permits, if they
   were not waived, was that of the respondent. This of course became a
   bone of contention between the appellant and the respondent and was
   one of the principal issues to be decided by the Court a quo.
   One however, searches in vain to find facts to support this
   contention. In the first place, the invitation by the Tender Board
   to tender was addressed to the appellant. It is clear that the
   Tender Board represented the respondent during that stage of the
   process. Furthermore, all the documentation on record points to the
   appellant as being the importer of the maize meal from the South
   African supplier, SASKO. There is no relationship, contractual or
   otherwise, that exists as between the supplier of the maize meal,
   (SASKO) and the respondent. In addition, correspondence from SASKO
   requests the appellant to furnish the supplier with a customs import
   permit, presumably to facilitate delivery of the maize meal, and an
   exemption certificate, stating that the 1841 tons of maize meal were
   free from all taxes and import taxes, and import permit
   requirements. There is no evidence that SASKO, the supplier, and DAS
   Logistics, the transporter, at any stage communicated with the
   respondent directly, thus making the appellant redundant. On the
   contrary and by his own admission, Mr Omar had in the past
   maintained contact between himself and the supplier, SASKO and DAS
   Logistics, in prior dealings with SASKO in regard to imports to
   Angola and the Democratic Republic of Congo, and other products that
   were imported. There is no evidence of this type of contact between
   the respondent and the suppliers as well as the transport company.
   The contentions regarding who the importer is have a direct bearing
   on the appellant’s submissions that there was an agreement
   between the parties that the issue of import permits would be the
   responsibility of the respondent and not the appellant. I
   accordingly agree with the conclusion of the Court a quo that
   the importer is the appellant and not the respondent.
   

   
   

Evaluation of the
evidence

7. 
   It will be convenient at
   this stage to detail the different versions given on behalf of the
   parties regarding the nature and detail of the agreement. The
   appellant received the tender documents by fax on 23 April 2003. The
   fax indicated that enquiries were to be directed to Ms Onesmus, the
   Secretary of the Tender Board. Page 3 of the original tender
   documents had contained the provision that was removed by the
   amendment. According to Mr Omar in his evidence, he at that stage
   had no idea what the Agronomic Board was, having had no dealings
   with it in the past and he accordingly contacted Ms Onesmus to find
   out, presumably, what this reference to the Agronomic Board was all
   about. According to Mr Omar, Ms Onesmus informed him not to worry
   about that as that part of the requirements had been waived. She
   said further that the change had been asked for by the EMU. Mr Omar
   then spoke to Mr Kangowa of the EMU who confirmed this information
   “because there would be no requirement to obtain approval or
   exemption from the Agronomic Board to import maize into Namibia.”
   When the appellant received replacement pages on 28 April 2003, it
   took it as confirmation of its interpretation of the agreement,
   namely, that the requirement for import permits had been waived in
   its case, or that the respondent had undertaken to make all the
   necessary arrangements, relieving the appellant of the duty to
   obtain import permits. Mr Omar’s case is that this intimation
   conveyed to him (and was calculated to convey) that the requirement
   for import permits had been waived by the respondent.

   
   

8. 
   Mr Omar’s evidence
   contrasts sharply with that given by the witnesses called on behalf
   of the respondent. Ms Onesmus’ version is that she had worked
   for the Tender Board for seven years. She had no recollection of the
   statements ascribed to her by Mr Omar. As the secretary of the
   Tender Board, her function was to take instructions from the Tender
   Board and she did not have authority to give assurances,
   interpretations and react to representations of the type ascribed to
   her by Mr Omar. She certainly did not tell Mr Omar not to comply
   with the legal requirements for the importation of maize meal. In
   cross examination Ms Onesmus 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.” (See record page 354.)

9. 
   The high point of the
   evidence of Ms Onesmus is that she referred Mr Omar to the EMU.
   Hinrichsen AJ, was favourably impressed by the evidence of Ms
   Onesmus. Indeed, given the relative positions occupied by Ms Onesmus
   at the Tender Board on the one hand and Mr Omar, an experienced
   international trader who, in his evidence described himself as an
   expert, on the other, the conclusion in favour of the veracity of Ms
   Onesmus was compelling. The evidence of Ms Onesmus therefore does
   not assist the appellant to establish the facts required to prove
   its version of the agreement and its terms, or alternatively, the
   misrepresentation it alleges. This evidence is supported by the fact
   that Mr Omar then, according to his legal practitioner’s
   letter dated 26 June 2003, pursued his enquiries with Mr Kangowa of
   the EMU. In the circumstances, the finding of the Court a quo,
   preferring the evidence of Ms Onesmus to that of Mr Omar cannot be
   faulted.

   
   

10. 
    Mr Omar’s version
    of the content of his conversations with Mr Kangowa is also at
    variance with that of Mr Kangowa in material respects. Mr Omar
    claims to have seen Mr Kangowa more than ten times. Mr Omar claims
    that Mr Kangowa told him that because of the drought relief
    situation, the Agronomic Board requirement for import permits for
    maize meal had been waived. Mr Kangowa denies in the first place
    that he made any such representation to Mr Omar and states that
    dealing with permits was not his responsibility. He confirmed that
    the tender invitation emanated from the EMU and that he had assisted
    Mr Omar at the latter’s request with a contact person at the
    delivery point, the location of warehouses for the storage of maize
    meal, and sending information to the border by fax. Mr Omar assured
    Mr Kangowa that he, Mr Omar, would get maize meal from South Africa
    because he had already spoken to the Agronomic Board. Mr Kangowa
    denied that he told Mr Omar anything that could have led the latter
    to conclude that there was a waiver by the respondent of the
    requirement for an import permit; or that the respondent would make
    the necessary arrangements to obtain the permits. The evidence in
    fact reveals that on 21 May 2003, even before the appellant received
    the orders, Mr Omar had been told by Mr Araeb in no uncertain terms
    that the Agronomic Board and EMU were responsible for permits and
    that he needed the permits to import maize meal into Namibia. Mr
    Kangowa testified rather that he went out of his way in an attempt
    to assist the appellant, at a time of crisis, when appellant was
    faced with a refusal to allow delivery of the maize meal through the
    Namibian border. Nothing here constitutes evidence of an assumption
    of responsibility by the respondent or its officials, to obtain the
    import permits or waive the legal requirement for them. Under
    cross-examination, Mr Omar was quite clearly unable to surmount the
    obstacles facing appellant’s case. Given our conclusion on the
    facts of the matter, we do not find it necessary to express any
    views on whether any of the officials had the competence to waive
    compliance with a legal requirement prescribed by Act of Parliament
    for the importation of maize meal.
    

    
    

11. 
    The appellant’s
    alternative claim was originally based on the allegation that the
    officials of the respondent, acting in the course and within the
    scope of their employment, represented to the appellant that the
    respondent would waive the requirement for import permits or would
    arrange for their procurement. This leg of the appellant’s
    case collapsed when the evidence of Ms Onesmus and that of Mr
    Kangowa did not support that of Mr Omar in this aspect. On the
    contrary, quite apart from the evidence of these two officials,
    there was strong evidence that Mr Omar was told quite firmly that it
    was his duty to obtain the import permits. Mr Omar in fact went on
    to request an official of the Board to give him an import permit. In
    the end what the appellant had to prove in the trial court was not
    only that it had entered into an agreement with the respondent for
    the delivery or supply of maize meal into Namibia, but also the
    terms of that agreement. It is here that the appellant, who bore the
    onus, could not make headway. On the evidence presented to
    the Court a quo, the appellant did not succeed in bringing
    this evidence to court and it is difficult to see how the High Court
    could have come to a different conclusion.
    

    
    

12. 
    A number of witnesses
    testified on behalf of the respondent, the first two of which were
    two officials in the employ of the respondent, namely, Ms Onesmus of
    the Tender Board of Namibia and Mr Kangowa, the Director of EMU. The
    evidence of several other witnesses (Mr Araeb and Mr Brock) merely
    added to the difficulties the appellant encountered and went to
    underscore the failure of the appellant to bring evidence to support
    its case. At the end of the day, therefore, it was clear that the
    appellant had not succeeded to prove its case on a preponderance of
    probabilities.

    
    

13. 
    Both in the trial Court
    and in argument on appeal, the appellant relied on what it claimed
    was the significance to be ascribed to the removal of paragraph 11.1
    from the Specifications and Conditions issued by the Tender Board,
    together with assurances and misrepresentations allegedly received
    from officials of the respondent. At the end, however, the amendment
    to the Specifications and Conditions merely proved to be a red
    herring. It had no impact on the detail of the agreement between the
    appellant and the respondent. Mr Omar, particularly when under
    cross-examination, was unable to sustain the allegation that the two
    officials in the employ of the respondent misrepresented the true
    position to him. In the end, the Court a quo correctly found
    that the terms of the agreement, as contended for by the appellant,
    had not been proved. Nor was there proof, on a balance of
    probabilities, of the representations as alleged by the appellant,
    made by the servants or officials of the respondent. The appeal must
    accordingly be dismissed with costs.

    
    

14. 
    Order:

    
    

The appeal is dismissed
with costs, such costs to include the costs of one instructing and
one instructed counsel.

________________________

LANGA AJA

I agree.

________________________

SHIVUTE CJ

I agree.

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MARITZ JA