A LEGAL challenge of a tender for the supply of medicines to the Ministry of Health and Social Services has failed to get over a first procedural hurdle in the Windhoek High Court.
The company Afripharm Investments did not explicitly set out the reasons why its challenge against conditions attached to a tender for the supply of pharmaceutical products to the health ministry had to be heard as an urgent matter, acting judge Doris Hans-Kaumbi said in a judgement delivered on Friday.
She also said the company had dealt with the claimed urgency of its case “as a mere afterthought”.
Hans-Kaumbi concluded that the company's application against the Central Procurement Board of Namibia, the government, the Namibia Medicines Regulatory Council (NMRC) and the registrar of medicines was not urgent, and struck the matter from the court roll.
She further directed that Afripharm Investments should pay the legal costs of the procurement board and the NMRC in the matter.
A director of Afripharm Investments, former TransNamib chief executive Sara Katiti, who stated that she is also the company's sole shareholder, claimed in an affidavit that conditions in the tender for the supply of medicines to the government were unlawful, unreasonable, unfair and irrational.
The company asked the court to declare those conditions as unlawful and irrational, and to set them aside.
In terms of the conditions, medicines which bidders in a tender for the supply of pharmaceuticals to the Ministry of Health and Social Services over a two-year period offer to supply to the government must be registered with the NMRC, or be authorised by the council to be supplied in Namibia without being registered.
Katiti informed the court her company wanted to bid to supply 200 of the 473 pharmaceutical products for which the procurement board has issued a tender, which according to her is valued at around half a billion Namibia dollars.
Katiti said the tender was advertised on 29 April, her company obtained the bid document on 3 May, and on 20 May it sent an email message to the NMRC to ask for authorisation to bid to supply unregistered products to the ministry.
The company's application to have the tender conditions declared unlawful and set aside was filed at the court only on 14 June.
In an affidavit also filed at the court, procurement board chairperson Amon Ngavetene said it would not be rational for the board to procure medicines of which the efficacy or safety could not be proven.
The registrar of medicines, Fransina Nambahu, further informed the court that in terms of the Medicines Act, no medicine which is required to be registered in Namibia may be sold in the country, unless such sale is authorised.
Hans-Kaumbi also noted in her judgement that an import licence, which the NMRC issued to Afripharm Investments in January this year, stipulates that the company was allowed to import registered or authorised medicines only, and had to comply with World Health Organisation guidelines on good distribution practices.
Afripharm Investments was represented by lawyer Sisa Namandje. Sakeus Akweenda represented the procurement board, and Eliaser Nekwaya argued the case on behalf of the NMRC. Oral arguments were heard on Wednesday last week.
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