Administrative Law

New Era Investment (Pty) Ltd v Roads Authority and Others (A 05/2014) [2014] NAHCMD 56 (20 February 2014);

Flynote: 

Administrative law – Right to the audi alteram partem rule of natural justice – Court held that natural justice is a flexible doctrine and the rule is not cut and dried for it vary infinitely – Court held that as a general rule fairness dictates that prejudicial information should be disclosed to the subject of the information to enable him or her to contradict or correct it – Nevertheless a careful distinction should be drawn between the information and the evaluation thereof during the process of the decision itself – And a right to discovery of prejudicial information is not an automatic feature of natural justice – In instant case the information complained of was not one of the two factors that led to the rejection of the applicant’s tender – The court found that there has not been a failure of fairness.

Administrative law – Judicial review – In terms of art 18 of the Namibian Constitution – Tender to do work – Applicant seeking review of decision of first respondent (a public authority) rejecting applicant’s tender in favour of another tenderer – Court held that there is no onus on the public authority to justify its conduct – Onus rests on the applicant for review to satisfy the court that good grounds exist to review the conduct complained of – Good grounds are grounds that are cogent and relevant – The grounds must be set out in the founding affidavit not grounds put forth or as sanitized by counsel in submissions from the Bar – Court held that it is up to a decision maker who knows what he or she desires to achieve to decide what information or facts to collect, what criteria to apply to the information or facts collected and what weight of importance and relevance to put on each piece of information or facts and each individual criterion – In the instant case the criteria or factors applied are contained in the first respondent’s procurement policy, rules and regulations the first respondent’s controlling line ministry’s policy – Court held that the first respondent being a public authority was entitled to apply the Ministry’s policy – The test is not what particular factors the public authority could apply and what weight it would put on each factor but whether the factors and weight were applied equally to the entire competition – The same goes for the criteria for factors to apply to the information and facts collected – Having rejected all the grounds of review the court dismissed the application with costs.

 

 

 

Headnote and Holding: 

Administrative law – Right to audi alteram partem – Court held that as a general rule fairness dictates that prejudicial information should be disclosed to the subject of the information to enable him or her to contradict or correct it – Nevertheless a careful distinction should be drawn between the information and the evaluation thereof during the process of the decision itself – And a right to discovery of prejudicial information is not an automatic feature of natural justice – In instant case the prejudicial information concerns the applicant’s ‘very questionable quality of work and ability to carry out tasks to programme deadlines in respect of two previous projects – Court found that the information was evaluated in addition to other information and facts, many of which were supplied by the tenderers – Court concluded that it was not established that but for the information the decision would have gone the other way in the applicant’s favour but there is ample evidence that the scores of the applicant in respect of technical evaluation and financial evaluation sealed its fate – These two evaluations led to the rejection of the applicant’s tender – Court concluded the non-disclosure of the information does not amount to failure of fairness – Court found that the applicant has not discharged the onus cast on it to satisfy the court that good grounds exist to review the decision of the public authority – Accordingly, application was dismissed with costs.

Administrative law – Judicial review – In terms of art 18 of the Namibian Constitution – Tender to do work – Applicant seeking review of decision of first respondent (a public authority) rejecting applicant’s tender in favour of another tenderer – Court held that there is no onus on the public authority to justify its conduct – Onus rests on the applicant for review to satisfy the court that good grounds exist to review the conduct complained of – Good grounds are grounds that are cogent and relevant – Applicant’s main complaint was that certain criteria and weights of importance and relevance put on those criteria that did not favour it were applied by the public authority to its disadvantage – Consequently, for the applicant, there was failure of fairness and reasonableness because the public authority did not apply its mind and it took into account irrelevant and extraneous considerations in rejecting applicant’s tender – Court rejected the grounds on the basis that the public authority was entitled to whatever information and facts it desired to collect and apply whatever criteria or factors in its procurement policy, rules and procedures and the policy of its controlling line Ministry and put any weight of relevance and important on any piece of information and fact and any criterion or factor so long as all these were applied equally to all the tenderers.