WINDHOEK - A disgruntled entrepreneur who won a tender during 2014 to supply the Ministry of Works and Transport took the ministry to court after it refused to accept the delivery of the goods more than three months after the agreed dates. 

Deluxe Trading Enterprises was the successful tenderer of Tender S1/2014: Supply and delivery of toilet papers, paper towels, refuse bags and cardboard containers to the Central Government Stores from September 10, 2014 to September 10, 2016 and extended to November 30, 2016. 

During January, the Central Stores placed an order with Deluxe which was to be delivered on January 12 and another that was to delivered on February 8, both for 240 000 rolls of double ply toilet paper. 

Deluxe however failed to deliver on both occasions and did not make any arrangements or give any explanation for their failure to deliver, the ministry argue in their papers. And this, they say, gave them the right to cancel the contract with Deluxe as it qualifies as a material breach of the contract. “Moreover, the plaintiff (Deluxe) did not manifest any intention to conduct its relations with the defendant (ministry) and discharged its duties in accordance with the contract,” they stated. 

According to them, it was a condition of the tender agreement that the supplier must observe the delivery date specified and failure to deliver on the agreed date will result in the cancellation on the contract. “Plaintiff failed to honour the agreement and it was on that basis that it was cancelled,” they said. The ministry represented by government attorney Freddy Kadhila further argued that due to the failure of Deluxe to – without a lawful excuse – deliver the goods on the agreed date, they concluded that proper performance in accordance with a true interpretation of the agreement would not be forthcoming and as such they are not entitled to the relief they seek. 

They also asked for an absolution from the instance order which means they want the Court to find them not liable for the costs. They asked for the claim to be dismissed with costs.  

Deluxe on the other hand claim they ordered the items from their suppliers and paid a non-refundable deposit to secure the items. However, the ministry says they have no knowledge of this and has no way to verify it. 
According to Deluxe, they were contracted by the ministry to supply the goods in the combined amount of N$480 000. According to them, in pursuance to the agreement between them and the ministry contracted suppliers to provide the items and paid a deposit to comply with its obligations. 

“The defendant in breach of the agreement and after the plaintiff has financially committed itself with suppliers and goods having been produced repudiated the terms of the agreement by purporting to cancel the agreement between the parties,” the papers of Deluxe read. According to them, the cancellation of the agreement was never accepted by them as such remained in force. 

However, they said, when they demanded performance (payment) from the ministry on June 12, 2017 after delivering the procured items, the ministry refused or failed to recognise the agreement. 

As such, they argued they are entitled to a declarator that the ministry is liable and under the obligation to comply and respect the agreement between the parties and is asking the Court to direct the ministry to receive the goods ordered and pay them as agreed upon.

Judge Harald Geier remanded the matter to September 24 at 10h00.