Windhoek High Court Judge Orben Sibeya this week struck an urgent application in which Africure Pharmaceuticals wanted the High Court to interdict the Central Procurement Board of Namibia (CPBN) and the health ministry from entering a contract with any supplier of Anti-Retroviral (ARV) medication.
Judge Sibeya ruled that the matter is not urgent and that the urgency is self-created. He further said that the claim of potential irreparable harm by the company is not sufficient to create urgency.
He ordered the company to pay the costs of the respondents on the scale of one instructing and one instructed counsel for the government respondents and one instructing and two instructed counsels in respect of Windhoek Medical Solutions who won the tender to supply ARVs.
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 claimed 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.
Africure tendered to supply 19 types of ARV medication at the cost of N$342.7 million, however, the company managed to secure a tender to supply only two types of ARV, at a total cost of N$722 832.
CPBN selected Windhoek Medical Solutions to supply five of the types of ARVs valued at N$219.3 million.
Judge Sibeya said that the urgency of an application is not to be assumed, but it is to be established on the facts of the matter.
“Self-created urgency does not render a matter urgent, nor does it prove that an applicant may not be afforded substantial redress at a hearing in due course,” the judge stated.
He further said the fact that an applicant may suffer irreparable damages is not a passport to render an application urgent. An applicant, he said, must prove the urgency of the matter. In the present case, the judge said, he finds that the applicant laid great store on the averments of irreparable harm in its claim for urgency, but as already said, it is not enough.
As such, Judge Sibeya said, the court holds the view that the applicants failed to explicitly set out the circumstances that render the application urgent and he has no choice but to decline to hear it as a matter of urgency.
Advocate Tinashe Chibwana instructed by Giant Kauari from Brockerhoff and Associates represented Africure, the CPBN was represented by advocate James Diedericks instructed by the Government Attorney and advocate Andrew Corbett, assisted by advocate Eliaser Nekwaya, instructed by Hafeni Hamunyela represented Windhoek Medical Supplies. -rrouth@nepc.com.na