Africure Pharmaceuticals has lodged another urgent application in the High Court, this time seeking to interdict the Central Procurement Board of Namibia and the health ministry from entering a contract with any supplier of Anti-Retroviral medication.
When the application was heard on Friday, Windhoek High Court Judge Orben Sibeya postponed the matter to 16 April for his ruling on the urgency of the matter.
The ministry, the central procurement board and one of the successful bidders, Windhoek Medical Solutions opposed the application.
Africure, a company run by businessman Shapwa Kanyama lodged its third urgent application to interdict the CPBN from entering any procurement contracts with any of the successful bidders in a tender for the supply of antiretroviral (ARV) medication to the health ministry pending a review application in the High Court. Their previous attempts were struck from the roll for lack of urgency.
This time they claim they received information that the CPBN and the ministry are on the verge of signing contracts with the successful bidders and they are pre-empting this because of the pending review.
According to them, none of the successful bidders, including Windhoek Medical Solutions provided a performance guarantee as required in the tender documents. They are also asking for costs on the scale of one instructing and one instructed counsel. They are represented by Tinashe Chibwana, instructed by Giant Kauari from Brockerhoff and Associates.
The CPBN represented by James Diedericks, instructed by the government attorney argued that the matter is not urgent and should be struck for that reason alone.
He further said the application is meritless in that their review application is weak and will not succeed.
They now seek to disrupt a procurement process, which relates to life enhancing medicine through a weak and meritless review application and a subsequent even weaker urgent application, the CPBN stated in court papers.
They further argued that granting the interim interdict would disrupt critical supply of life enhancing products to people in Namibia who depend on its regular and uninterrupted supply, which would be in the public interest.
To interdict the process would have an adverse effect on public interest as there would be zero supply until the review determined at first and then perhaps on appeal, Diedericks argued.
Windhoek Medical Solutions, represented by Andrew Corbett, assisted by Eliaser Nekwaya, instructed by Hafeni Hamunyela, argued that the timeframe in which the application was lodged seriously prejudiced them.
They had to work throughout the night and during a holiday to prepare for the matter, Corbett lamented.
However, he said, the matter is not urgent and due to the inept way this matter has been pursued, any urgency is self-created.
Condonation, in respect of permitting a party to jump the queue on the court’s roll is an indulgence, he said which cannot be dished out nilly-willy, Corbett argued.
He further said where an applicant seeks a second or even a third bite at the cherry, his grounds of urgency must be even more compelling than his first attempts.
He also referred to the weakness of the review application and said the court cannot indulge the applicant where his review application is likely to fail.
He too asked for costs on the scale of one instructing and two instructed counsels.
Africure, tendered to supply 19 types of ARV medication at a cost of N$342.7 million, however, the company only managed to secure a tender to supply two types of ARV, at a total N$722 832.
CPBN selected Windhoek Medical Solutions to supply five of the types of ARVs valued at N$219.3 million.
-rrouth@nepc.com.na