WINDHOEK – Namibia Airports Company (NAC) through its new Board of Directors is asking the Windhoek High Court to review and set aside a decision and resolution taken by the previous board of the embattled public company to award a tender to China State Construction Engineering Company (CSCES) to be appointed as the contractor for the Ondangwa Airport Runway Rehabilitation Project.
According to them the award for the Ondangwa Airport Runway Rehabilitation Project Phase Two was marred by serious misrepresentations to the previous board by the company’s former CEO Tammer El-Kallawi and its manager for operations, Courage Silombela, which renders the award null and void.
El-Kallawi and Silombela tendered their resignation days before they could be hauled before a disciplinary hearing for misconduct.
The NAC is also asking High Court Judge Thomas Masuku to declare that any contract that may have come into existence between the NAC and CSCEC as a result of the award, including the award and as communicated to CSCEC on June 24, 2016 in a letter, as void ab initio – not legally binding – alternatively that any such contract be declared invalid and set aside.
They are also asking the court to issue an order condoning any failure on their part to institute the application within a reasonable time period and costs for two instructed and three instructing counsels. They are represented by South African Senior Counsel Rafik Bhana instructed by Clive Kavendji.
According to Bhana, should the court condone their delay in filing the proceedings, the merits are overwhelmingly in favour of the NAC. He said the crucial misrepresentations by Silombela and El-Kallawi made the award unlawful and thus void. What is clear, he said, is that the original price estimates were ever-moving figures.
“The original price was incrementally increased, without proper explanation, to an amount in excess of N$200 million, and there was no clarity at all whether the price was market-related. The original price was N$168 million and was later increased to just over N$211 million,” he said and continued: “In the midst of the uncertainty that surrounded the price, Mr Silombela already pre-determined that the tender for Phase 2 was not to be subjected to a competitive bid. “
According to Bhana, the representation was made to the previous board that Phase 2 was simply a continuation of Phase 1 which CSCES did and therefore did not require requests for bids and a new tender process.
This was a staggering misrepresentation given the size and magnitude of the project, the uncertainty regarding the price, and the fact that NAC was subject to clear procurement policies, of which all parties were well aware, Bhana stated.
He stressed the process of awarding the contract to CSCEC was being “steamrolled” through as an urgent issue, where no urgency existed, and amidst the great uncertainty regarding the price and whether it was market related.
CSCEC opposed the application.
Senior Counsel Vincent Maleka, assisted by Dr Sacky Akweenda and Advocate Eliaser Nekwaya represented CSCEC on instructions of LorentzAngula, argued that NAC did not make out a case for the prayers they seek. In any event, he argued, the application was brought after a period of more than 17 months after the decision and resolution were made. He said the delay is extraordinarily long, and a substantial part thereof remains unanswered. According to him its effect is prejudicial to CSCEC and the public that uses the Ondangwa Airport.
“The respondent (CSCEC ) has already accepted the tender and has taken measures to implement it,” he argued and continued: “It is respectfully submitted that the applicant must be held bound to its decision and that the respondent ought not to be prejudiced by the applicant’s remissness and that of its officials, in the circumstances of this application where there is a long and unexplained delay, and the respondent suffers and will continue to suffer both reputational and financial harm that the applicant has not undertaken to redress.” He also asked for costs for three instructed counsel and one instructing counsel.
Judge Masuku reserved his ruling until June 3.