IN THE HIGH COURT OF NAMIBIA
NO. P I 2765/2003
THE HIGH COURT OF NAMIBIA
the matter between:
BUSINESS BUREAU (PTY) LIMITED Plaintiff
MINISTER'S OFFICE) Defendant
Heard on: 03/06/2008
 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.
 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
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, 8th
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
 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.
 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:
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.
 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.
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:
1.1 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
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.”
1.3 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
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:
Region 858 metric tones (mt)
Region 483 mt
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:
Order no. 981017
for 858 mt – N$ 2 132 988.00;
Order no. 981019
for 483 mt – N$ 1 297 338.00;
Order no. 981018
for 500 mt – N$ 1 443 000.00.
Copies of the said
orders are annexed hereto as annexure ‘D1” to “D3”,
In paragraph 10 of
the plaintiff’s particulars of claim it is alleged that:
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,
that the defendant would be responsible to arrange for the entrance
of the vehicles conveying the maize meal into Namibia, with or
the alternative to the above, the plaintiff relies on delict
of claim, par 8).
This is clearly based on the negligent conduct of plaintiff,
causing the plaintiff to suffer damages."
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.
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
p 104 – 109
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
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
p 25 &32, 33
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
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
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.
also raises the non-joinder of the Agronomic Board. The non-joinder
of the Tender Board is not pursued. The counterclaim was also
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.
It is submitted that
it is trite that plaintiff bears the onus in its entirely.
It is submitted that
this matter can be resolved on two issues:
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
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
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
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.
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
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
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.
Omar further testified that he was alerted to the fact that an
exemption certificate and import permit was required on 21 May 2003.
of documents: document 15
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
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
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.
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.
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
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.
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.
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
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 &
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.
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
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 :
doctrine still holds good of a person who, in a modern state, wherein
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
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.
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.
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
It is submitted that
on this basis the plaintiff claims should be dismissed with costs."
So far the case
presented by both parties.
 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
 I find that the
facts presented in evidence exclude the following issues –
– 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.
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
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
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
“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
& 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.
non-joinder issue is rightly not pursued by Defendant. It would have
been dismissed on the above grounds.
 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
issue raised by Plaintiff’s Counsel of who the importer of the
maize meal is. There is an immediate difference of opinion between
In his introductory
summary of the Plaintiff’s case its counsel claims that
“….Government was the importer of the maize not the
“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.
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
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.
the Plaintiff’s Mr Omar underlines the convenience of claiming
the Defendant to be the importer of the maize meal.
supplying to the Government, the Government take responsibility by
providing all the necessary exemptions, all the necessary permit.”
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.”
Omar also lectures
that “…..as the Government gives order the Government is
responsible to provide all the necessary permits.”
I find that the
Government the Defendant was not the importer of the maize meal. The
importer was the Plaintiff.
 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:-
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".
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
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.”
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.
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.
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.
 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
By fax on 23rd
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 23rd
April 2003 he telephoned Onesmus to enquire about the omission. This
portion of the evidence of Omar is recorded in transcript as
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).
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.
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:-
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
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).
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:-
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.
 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 23rd
April 2003 before he quoted to the Tender Board.
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 22nd
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).
evidence-in-chief Kangowa testifies that he held the position of
deputy director since 1997.
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:-
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
(Record p. 277 )
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.
 During the
April to 21st
May 2003 there is no evidence that Omar pursued investigations
regarding an import permit directly with the Agronomic Board.
It is clear that
April 2003 he knew about the existence of the Agronomic Board.
May 2003 the Plaintiff was partially awarded the tender it quoted for
i.e. for the regions Caprivi, Otjozondjupa and Kavango.
May 2003 SASKO, the South African millers confirmed the Plaintiff’s
order to mill maize meal for those regions.
May 2003 SASKO advised the Plaintiff per fax as a first requirement
that it required a “Customs Import Permit”.
 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 3rd
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 2nd
June 2003 between Omar and the Chief Executive officer of the
Agronomic Board. (Since 2001) Mr Brock (Brock) who in his evidence
confirmed the 2nd
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.
 Having been
alerted to the existence of the Agronomic Board on 23rd
April 2003 and having been advised of the necessity of obtaining an
import permit on 26th
May 2003 and having also applied for one in writing on that day Omar
the one hand
continues to make arrangements with SASKO for the delivery of maize
meal from South Africa.
May 2003 he applies for and obtains VAT exemption from the Ministry
of Finance for the import of maize meal. By letters and faxes
May and on 30th
May 2003 he goes ahead with arranging the financing and delivery of
the maize meal with SASKO and the Transport with DAS.
the other hand
instead of following up the import permit issue with the Agronomic
Board directly, Omar now by letter dated 22nd
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.
 Omar then turns
to the EMU represented by its Deputy Director Kangowa by letter dated
May 2003 advising that the trucks have been loaded. On page two of
that letter he states the following:-
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
 As regards the
maize meal transport on 30th
May 2003 seven trucks arrived at the Nakop border post and on 4th
June 2003 six trucks arrived at the Ngama border post (the
Omar could have
stopped the consignments before departure as late as 28th
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 23rd
May 2003 the trucks were not loaded. On 21st
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.
 As the expert
he claims to be, “alarm bells”, as Defendant’s
counsel put it, should have begun ringing on 23rd
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:-
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. “
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
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.
 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 23rd
April 2003 and at the loading and transport stage from 21st
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.
 At its
extraordinary meeting on 11th
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 11th
1985, white maize meal was not allowed to be imported in order to
protect the domestic agronomic industry against unfair competition.
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.
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.
(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
(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.
 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
Kangowa since 1997
Araëb for 21
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
Onesmus passes on
queries to the author of the tender.
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.
 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.
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
What is clear is
that Omar was not made aware of Kangowa’s reasons for the
 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.
 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.
 Having made
these findings I do not consider it necessary to rule on the
Firstly whether the
Government is above the law or is bound by certain legislation
Government employees or servants can effectively bind the Government
by utterances or action; i.e. whether the Government is vicariously
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.
Counsel criticized the failure of Defendant’s Counsel to
properly cross examine and in support he inter alia cited the
“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.
 In making my
order I am guided by the following passages in Herbstein and Van
“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
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).
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.)
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
NO v Van Zyl
1962 (4) SA 47 (C).”
Herbstein and Van
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
 Accordingly I
make the following order:
Absolution from the
instance with costs is ordered against the Plaintiff.
ON BEHALF OF
PLAINTIFF ADV R HEATHCOTE
by: CONRADIE & DAMASEB
ON BEHALF OF
DEFENDANT ADV. G COLEMAN
by: GOVERNMENT ATTORNEY