10

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: A 250/2012

In the matter between:

AURECON NAMIBIA (PTY) LTD APPLICANT

and

THE ROADS AUTHORITY FIRST RESPONDENT

THE MINISTER OF WORKS

TRANSPORT & COMMUNICATION SECOND RESPONDENT

Neutral citation: Aurecon Namibia (Pty) Ltd v The Roads Authority (A 250/2012) [2013] NAHCMD 21 (28 January 2013)

Coram: UEITELE J

Heard: 19 November 2012

Delivered: 28 January 2013

Flynote: Practice - Applications and motions - Urgent application - Abridgment of times prescribed and acceleration of hearing - Good cause - What constitute -Possible financial prejudice - Not entitled to preference.

Summary: The applicant and the first respondent concluded an agreement (on 17 November 2000) in terms of which the applicant had to render services to the respondent for the detailed design, documentation, site supervision and contract management for the Windhoek - Okahandja passing lanes and other improvements. The agreement regulated two phases of the services to be rendered, namely the design phase, and the contract management and site supervision phase.

The applicant executed the first phase of the agreement and only the second phase was still to be implemented. It is, however, common cause that as from June 2005 the applicant was not in the financial position to implement the second phase of the agreement. The agreement was thus dormant for a period of over six years. During 2012 the first respondent revised the services that need to be render for the upgrade of the Okahandja – Windhoek roads. It informed the applicant that it is cancelling the agreement concluded during November 2000, called for new tenders to render services with respect to the upgrade of the Okahandja – Windhoek roads.

Applicant disputed the first respondent’s right to cancel the agreement and thus sought to interdict the first respondent from awarding tender with number RA/CS-CR/06-2012 or any other tender for the detailed investigation, detailed design, tender documentation, contract management and site supervision for TR 901: Windhoek to Okahandja (from MO0049 TO TO107/TO701) and the rehabilitation and upgrade to 4 lanes / 3 lanes to any other party

Held, That in the circumstances of this case the commercial interest of the applicant in this matter is not of such a nature as to render the matter urgent.

Held, Mere lip service to the requirements of Rule 6 (12) (b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter be set down.

ORDER

The application is struck from the roll, with costs.

JUDGMENT

UEITELE J:

[1] In this matter the applicant approached this court on an urgent basis, claiming the following relief:

‘1. Condoning the applicant’s non-compliance with the rules of this Honourable Court and hearing this application for interim relief as set out in prayers 2 & 3 below, on an urgent basis as envisaged by rule 6(12) of the High Court rules.

2. Interdicting and restraining first respondent to award tender with number RA/CS-CR/06-2012 or any other tender for the detailed investigation, detailed design, tender documentation, contract management and site supervision for TR 901: Windhoek to Okahandja (from MO0049 TO TO107/TO701) and the rehabilitation and upgrade to 4 lanes / 3 lanes to any other party.

3. Interdicting the first respondent from taking any further step or proceeding towards the implementation of any tender arising from the submission of the tender referred to in prayer 2.1 above pending proceedings to be instituted by the applicant against the respondents for relief which will ensure that applicant’s contractual rights as set out in the agreements annexed to the founding affidavit marked “JK 1 TO JK 6” are enforced and protected.

4. That the costs of this application shall be in the cause of the proceedings to be instituted by the applicant against the first respondent.’

[2] The brief background to the applicant’s claim is that, on 17 November 2000, the applicant and the first respondent (since the second respondent has not opposed this matter I will, in this judgment, refer to the first respondent as the respondent) concluded an agreement in terms of which the applicant had to render services to the respondent for the detailed design, documentation, site supervision and contract management for the Windhoek - Okahandja passing lanes and other improvements. The agreement regulated two phases of the services to be rendered, namely the design phase, and the contract management and site supervision phase. I will in this judgment refer to the agreement signed on 17 November 2000 as the November 2000 agreement.

[3] During September 2001 the parties signed an appendix to the November 2000 agreement, the purpose of the appendix was to extend the November 2000 agreement. The agreement was again extended during January 2003. The applicant completed the first phase of the November 2000 agreement, namely the detailed design of the passing lanes.

[4] The second phase of the November 2000 agreement (ie the tender process, appointment of a contractor, the site supervision and contract management) is what remained to be performed. From the allegations contained in the affidavits it is common cause that since June 2005, the respondent was not in the financial position to execute the second phase of the November 2000 agreement. It thus follows that between June 2005 and January 2012 nothing happened as regards the November 2000 agreement. The applicant did not even direct any enquiry to the respondent as to what the status of the agreement was.

[5] During August 2012 the applicant addressed a letter to the respondent in which letter the applicant confirmed the existence of the November 2000 agreement. Applicant alleges that the reason why it wrote the letter is because it heard rumours that the first responded was considering to re-allocate the services for the detailed design, documentation, site supervision and contract management for the Windhoek- Okahandja passing lanes and other improvements (by inviting new tenders).

[6] On 10 September 2012 the respondent addressed a letter to the applicant, in which letter the respondent indicated that it is cancelling the November 2000 agreement. The applicant replied to that letter and denied the respondent’s entitlement to cancel the agreement. During September 2012, the respondent under Tender No RA/CS - CR/06-2012 invited tenders for the detailed design, tender documentation, contract management and site supervision for TR 9/1, Windhoek (from M00049 to T0 105) and TR 1/6: Windhoek to Okahandja (from M00049 to T0107/T0 701) – Rehabilitation and upgrade to dual carriage 4 Lanes / 3 Lanes (Khomas and Otjozondjupa regions). The closing date for the submission of tenders was set for 17 October 2012 at 11H30. The applicant alleges that the tender invited by the respondent on 21 September 2012 is to execute substantially the same works as that which is set out in the November 2000 agreement.

[7] Between 01 October 2012 and 12 October 2012 an exchange of letters took place between the applicant’s legal practitioners and the respondent’s legal practitioners. The applicant’s aim of addressing these letters to the respondents, was to secure an undertaking by the respondent that the consideration and award of the September 2012 tender will not take place until the dispute (between applicant and respondent) with regard to the respondent’s right to cancel the November 2000 agreement is resolved. When the applicant failed to secure the undertaking, it instituted this application. The first respondent opposed the relief sought on a number of bases, the first one being that it denies that any ground of urgency exists. I will now turn to consider this ground.

[8] It is now common cause that, to ensure the smooth operation of the Courts, a body of adjective law has evolved and much of that law is contained in the rules of Court. Rule 6 of this court deals with applications. Rule 6 (12) specifically deals with the matter at hand. It provide as follows:

‘(12) (a) In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet.

(b) In every affidavit or petition filed in support of any application under paragraph (a) of this subrule, the applicant shall set forth explicitly the circumstances which he or she avers render the matter urgent and the reasons why he or she claims that he or she could not be afforded substantial redress at a hearing in due course.’

[9] It is clear that this rule entails two requirements, namely that the applicant must explicitly set out the circumstances which render the matter urgent, and secondly the reasons why the applicant claims that he or she will not be afforded substantial redress at a hearing in due course.[1]

What are the circumstances which render this matter urgent?

[10] The applicant has, in its affidavit, set out the following circumstances as rendering the matter urgent:

‘52 The applicant requires interim protection and relief by this Honourable Court in the light of the eminent tender evaluation process and the awarding of tender No RA/CS - CR/06-2012 . . . . An action or arbitration in the normal course including exchange of documents and pleadings according to the normal time periods provided for in the rules of this Honourable Court or in accordance with the arbitration procedure agreed upon, will cause the matter to be finalized over a period of many months. If the interim relief is thus not granted it may very be that the tender herein is awarded and be commenced with by a third party when this review is finalized.

53 . . .

54 If the urgent interim relief is not granted in this matter, pending the final outcome of main proceedings wherein the purported cancellation of the agreement between the parties is challenged the tender therein would have been awarded to a third party and will have been commenced with and the applicant would have lost its rights in respect thereof, not to mention the patrimonial damages the applicant stands to suffer, which I am advised will in law be very difficult to prove and recover. The harm and prejudice that the applicant would suffer accordingly is indeed irreparable in the circumstances.’

[11] As regards the second requirement the applicant simply states the following:

‘I respectfully submit this application is urgent and that the applicant cannot be afforded substantial redress at a hearing in due course.’

[12] In the matter of IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another[2] Fagan J who delivered the judgment of the Court said:

‘It is clear from the requirements set out in Rules 27 and 6 (12) that the Court's power to abridge the times prescribed and to accelerate the hearing of the matters should be exercised with judicial discretion and upon sufficient and satisfactory grounds being shown by the applicants. The major considerations normally and in these two applications are three in number, viz the prejudice that applicants might suffer by having to wait for a hearing in the ordinary course; the prejudice that other litigants might suffer if the applications were given preference; and the prejudice that respondents might suffer by the abridgment of the prescribed times and an early hearing.’[3]

[13] In this matter the applicant’s cause of complaint is an alleged breach of contract. It was submitted that if the matter is not heard immediately it will cause irreparable patrimonial damages to the applicant. Having regard to the three considerations mentioned by Fagan J it is quite clear that other litigants waiting for their matters to be heard would be prejudiced if priority were afforded to this application as they would have to wait longer. I thus echo the words of Fagan J when he asked: ‘what distinguishes these two applications from other matters?’ Actions or arbitration proceeding for breach of contract occur commonly and are not given priority. The prejudice that applicants are complaining about is the possibility that they may suffer patrimonial damages, the damages if any, sound in money. Assuming that such damages are irrecoverable, that still does not distinguish these matters from many others awaiting their turn on the ordinary roll. I furthermore find the following reasoning by Fagan J to be applicable to this matter:

‘Take for example all the cases wherein general damages are claimed in delict including actions instituted under the Compulsory Motor Vehicle Insurance Act 56 of 1972. Interest is not claimable on the amount awarded and litigants suffer financially by delay in the adjudication of their matters. Moreover, the fact that a litigant with a claim sounding in money may suffer serious financial consequences by having to wait his turn for the hearing of his claim does not entitle him to preferential treatment. On the other hand, where a person's personal safety or liberty is involved or where a young child is likely to suffer physical or psychological harm, the Court will be far more amenable to dispensing with the requirements of the Rules and disposing of the matter with such expedition as the situation warrants. The reason for this differential treatment is that the Courts are there to serve the public and this service is likely to be seriously disrupted if considerations such as those advanced by the applicants in these two matters were allowed to dictate the priority they should receive on the roll. It is, in the nature of things, impossible for all matters to be dealt with as soon as they are ripe for hearing. Considerations of fairness require litigants to wait their turn for the hearing of their matters. To interpose at the top of the queue a matter which does not warrant such treatment automatically results in an additional delay in the hearing of others awaiting their turn, which is both prejudicial and unfair to them. The loss that applicants might suffer by not being afforded an immediate hearing is not the kind of loss that justifies the disruption of the roll and the resultant prejudice to other members of the litigating public. Finally there is the question of prejudice to respondents. First respondents were required to prepare their answering affidavits and obtain the services of counsel for the hearing in great haste.’[4] {My emphasis}