WINDHOEK - China State Construction Engineering Corporation (CSCEC) has launched an appeal in the Namibian Supreme Court against Windhoek High Court Judge Thomas Masuku’s judgment in their dispute with the Namibian Airports Company (NAC). The case concerns the contract for the upgrade of the Ondangwa Airport awarded to CSEC in 2016.
Judge Masuku found in favour of the NAC when the new board of the company asked him to review and set aside a decision and resolution taken by the previous board of the embattled public company to award a tender to CSCEC as the contractor for the Ondangwa Airport Runway Rehabilitation Project.
According to the notice of appeal filed at the country’s highest court by the lawyer for CSCEC, Henry Shimutwikeni, the high court erred on law and the facts when it granted the order and in particular in finding that the ‘defences’ the CSCEC presented are not factual; the CSCEC does not contest most of the events that took place, as recounted by NAC, and that defences of CSCEC can best be ‘described as being technical and legal in nature by most part’.
They also said the court was wrong in finding that CSCEC did not properly raise the point of joinder of former CEO Tammer El-Kallawi, its former manager for operations, Courage Silombela, and Aurecon Consulting Engineers.
Another point of contention for CSCEC is where Judge Masuku found that the delay of the NAC to institute the proceedings was not ‘egregious’ because of ‘the complex state of facts and the magnitude of the issues and the personalities involved’ but which delay is fully explained.
According to the papers filed, the high court was wrong to find that the CSCEC did not suffer any prejudice as it had already taken various preparatory steps aimed at the implementation of the award by the time the new board was appointed.
This, they said, included a performance guarantee in excess of N$20 million, a provisional program of works, concrete and C$ Mix design, cash flow, safety plan and method statement which all costs money.
In addition they retained on the site the equipment, personnel and laboratories used during Phase 1 and paid part of the monthly cost for the engineer’s laboratory on site.
Further they find fault with Judge Masuku’s reasoning that the NAC procurement policies were thrown into the dustbin and that the former board was entitled to deviate from the procurement policy in the circumstances.
CSCEC further contends that Judge Masuku erred when he failed to find that the increase in the tender amount was properly explained and was acceptable and reasonable in circumstances where Aurecon (the engineers) evaluated the bill of quantities and found that the prices were still the lowest.
According to them, various items in the first bill were not costed and only included in the revised bill of quantities.
They further say that an independent expert evaluated the bill of quantities and found that the costs were market-related.
The supreme court still needs to decide on a date to hear the appeal.
NAC is represented by Kangueehi and Kavendji.