The Windhoek High Court ruled the Motor Vehicle Accident Fund would suffer irreparable harm if it does not go ahead with awarding its investment tender to various successful bidders.
On Friday, judge Shafimana Ueitele said the MVA Fund managed to convince the court that it will suffer irreparable harm if it does not carry out the court’s February order, despite an appeal having been filed in the Supreme Court on 1 March.
The High Court on 28 February ruled in favour of the MVA by overturning the 17 January decision of the review panel to set aside the investment tender which was awarded to various investment companies.
In the judgement, the High Court noted that the review panel has no power to review and set aside the fund’s decision when there was no application for reconsideration submitted to the MVA.
The Fund sued the review panel after it ordered a cancellation of the award it had made, and ordered the bidding process to start afresh.
The review panel was of the view that the tender was not awarded in compliance with the law. The panel’s decision follows a complaint by one of the losing bidders – Orcas Investment Managers.
Orcas, who are dissatisfied with the High Court’s decision, have since taken the fight to the Supreme Court, saying the court a quo erred in its ruling.
However, Ueitele said Orcas failed to defend the application brought by the MVA for it to carry out the February ruling. He also observed that although common law dictates that the execution of a judgement cannot be carried out when a notice of appeal has been filed, the court whose judgement is being appealed may order for the judgement to be carried out if it is satisfied that there are special circumstances which warrant the execution of that ruling.
“This can only be done upon an application by the party in whose favour the judgement was given; in this case, the MVA brought an application to carry out the judgement,” stated Ueitele.
“Leave is granted to the applicant to carry the judgement of this court delivered on 28 February 2023 under Case No. HC-MD-CIV-MOT-REV-2023/00052 into effect, pending a decision on the appeal lodged by the second respondent on 1 March 2023,” the judge ordered before removing the case from the roll and deeming it finalised.
In their application, the Fund claims that waiting for the Supreme Court’s decision on the matter would result in a loss of millions of dollars.
In court documents, the fund’s CEO Rosalia Martins-Hausiku claimed that if the High Court’s judgement is not implemented, it would result in the company making a loss of N$1 million per month, and consequently N$24 million over a period of two years.
She also claimed that Orcas’ appeal to the Supreme Court is nothing more than a delaying tactic for it to frustrate the implementation of the bid.
– mamakali@nepc.com.na