Attack on Lands office building contract stuck in starting blocks

AN ATTEMPT by two of Namibia’s largest construction companies to challenge the award of a N$74 million contract for the building of new headquarters for the Ministry of Lands to a Chinese construction company remained bogged down in a multitude of sticky technical objections in the High Court in Windhoek this week.

Construction companies Namibia Construction and Murray & Roberts (Namibia) have been suing the Chairperson of the Tender Board, the Minister of Works, Transport and Communication and a Chinese building contractor, China Nanjing International (Namibia), since mid-October 2007 in a hitherto fruitless bid to overturn a decision to award a tender for the construction of a new head office for the Ministry of Lands and Resettlement in Windhoek to China Nanjing.The case made a first turn in the High Court at the end of November 2007, when it was ruled that it did not meet the requirements to be heard as an urgent matter.In July last year the case returned to court, and this time lawyers representing China Nanjing and Government succeeded in persuading Judge Nate Ndauendapo that the court should first deal with a host of preliminary issues that have been raised, before the merits of the matter would be dealt with – if that point is ever reached.The case returned to the High Court for a third time this week, with Judge Ndauendapo hearing arguments on the preliminary objections that have been raised against the two construction companies’ application. After a hearing that started on Monday and ended late on Tuesday, Judge Ndauendapo reserved his judgement on the preliminary points that have been raised.Meanwhile, at the construction site on Robert Mugabe Avenue where the Lands Ministry’s new head office will be situated, construction work is proceeding apace. While lawyers across town remained locked in a courtroom battle over the decision to award the contract for the construction of the building to China Nanjing, the multi-storey building at the centre of the case has risen to about roof height already.The building contract was awarded to China Nanjing, which tendered to carry out the construction for an amount of N$74,39 million. The tender bids of both Murray& Roberts (Namibia) – at N$78,85 million – and Namibia Construction – at N$79,99 million – were higher than the Chinese contractor’s bid.The two companies however decided to challenge the award of the contract in court, basing their attack on claims that by awarding building jobs to Chinese construction companies that do not comply with Namibia’s labour and affirmative action laws, Government is in effect condoning the flouting of the country’s laws and entering into illegal contracts.In documents filed with the High Court, Namibia Construction and Murray & Roberts are claiming that China Nanjing was not registered with the Employment Equity Commission at the time it was awarded the Lands Ministry building contract, and that it had failed to submit reports required by the Affirmative Action (Employment) Act of 1998.The two companies are also claiming that China Nanjing was not a member of the Construction Industries Federation of Namibia (CIF), with the result that it was not a party to a collective agreement between the CIF and the Metal and Allied Namibian Workers Union (Manwu), which they claim was one of the express requirements stipulated for the Lands Ministry building tender.The two companies charged that it was apparent that China Nanjing ‘has been enjoying preferential and unequal treatment vis-a-vis its Namibian counterparts’.In a statement that China Nanjing’s lawyers this week attacked as baseless, degrading and defamatory, Namibia Construction’s Chief Executive Officer, Karl-Heinz Schultz, also charged: ‘It has become common knowledge that Chinese contractors operating in the Republic of Namibia do not regard themselves to be subject to the laws of this country and to that end have been allowed to break the law with impunity.’This is one of the parts of Schultz’s affidavit that should be struck out, one of the lawyers representing China Nanjing, Andrew Corbett, argued before Judge Ndauendapo this week.Corbett and the senior counsel who is also representing the China Nanjing, Pieter Henning, have argued that the two construction companies’ application is fatally defective and should as a result be dismissed.For instance, by suing the Chairperson of the Tender Board, instead of the Tender Board of Namibia, the correct decision-maker that awarded the contract to China Nanjing has not been cited, Corbett argued this week. He further argued that the other unsuccessful tenderers should also have been cited as parties to the case, and that the Minister of Finance, as the Minister responsible for the Tender Board, should have been cited, instead of the Minister of Works.The record of the Tender Board decision that has been filed with the court has not been certified by the two companies’ attorney as a correct copy of the record as the court’s rules require, it was also argued. As a result, the court should ignore this entire record, it was argued.Ultimately, though, Corbett argued, the court has to be pragmatic and practical. With the new building already at roof height, it would make no sense to now make an order setting aside the initial decision to award the building job to China Nanjing, he argued.Adrian de Bourbon, SC, who is representing Namibia Construction and Murray & Roberts, in turn argued that China Nanjing’s lawyers were, by taking ‘technical and formalistic’ points, trying to do everything in their power to prevent the court from dealing with the actual merits of the case.On its merits, the case was about the question whether Government could conclude a contract that is in conflict with the country’s laws, De Bourbon told the Judge.’Sterile formalism’, De Bourbon repeatedly termed the objections raised by his opponents in court.Reserving his judgement, Judge Ndauendapo remarked that he would try to give a ruling on the matter as soon as possible. – werner@namibian.com.na