Shetu Trading fails in court bid

A SECOND attempt to stop the delivery of rails bought by Government for the Northern Railway extension project ended in failure in the High Court on Friday.

Acting Judge Raymond Heathcote dismissed an urgent application in which Shetu Trading, one of the unsuccessful bidders on a multi-million dollar tender to supply rails for the Northern Railway extension project, tried to stop the delivery of rails to Government. Acting Judge Heathcote ordered that each party pay its own costs.In a pending review case filed with the High Court in November last year, Shetu Trading CC is challenging the award of the supply of rails tender to the company whose bid was the lowest received by the Tender Board of Namibia. The tender was awarded to a South African company, VAE SA, which is a subsidiary of an Austrian company that manufactures railway infrastructure, including rails.Friday’s decision by the court that each party pay their own costs was nevertheless an ‘indication that we had a very good case, Shetu Trading’s legal team at Lorentz Angula Inc, said.But, what tipped the case in the opposition’s favour was the fact that the tender implementation is close to completion – ‘you can only interdict what will happen, not what happened’.’Most likely he would have considered the balance of convenience which at the date we went to court, June 14, might have not been in our client’s favour any longer, because at that time 96 per cent of the tender was completed,’ the Lorentz Angula lawyer said. This was Shetu Trading’s second attempt to get the High Court to prevent VAE SA from delivering rails which arrived at Walvis Bay. The dismissal of an earlier attempt in April, when Shetu Trading was also ordered to pay its opponents’ legal costs, is being appealed at the Supreme Court on July 15.In the review application filed with the court late last year, Anna Mbundu, Executive Director of Shetu Trading, has asked that the tender process and award be reviewed, based on allegations of ‘gross irregularities’ which led to VAE SA being awarded the tender.Despite the court battle, the Ministry of Works and Transport and VAE SA continued to implement the tender, with the second supply of rails scheduled to take place later this month at Walvis Bay.Mbundu is accusing the Ministry of Works and Transport, the Tender Broad of Namibia, Permanent Secretary of Works George Simataa and VAE SA, plus others, of irregularities during the tender award process.In particular, she says Shetu Trading’s dismissal from the tender process hinged on incorrect information given to the Tender Board.Moreover, Mbundu accuses Simataa in his personal capacity of influencing the tender process by providing incorrect information to the Tender Board.Mbundu states in court documents that Tender Board meeting documents prove that the Tender Board had ‘serious concerns with the way the tender was handled by the Ministry’.In her affidavit filed in the second urgent application, Mbundu claims VAE SA’s tender bid was in a total amount of N$189 181 906,16.However, Mbundu claims that according to the contract signed by the Ministry of Works and VAE SA, the contract price was ‘over N$4 million more than the authorised tender amount’.’This is grossly irregular and amounts to fraud on the government,’ she has charged.Shetu Trading’s bid price was N$216 982 815,38.A consulting engineer who evaluated the bids for the Ministry of Works and Transport recommended that the tender be awarded to another close corporation, Storbou Construction CC, whose bid price was about N$210,9 million. Simataa however recommended that the tender be awarded to VAE SA, whose bid was the lowest of the six bids received. The Tender Board decided on August 30 last year to award the contract to VAE SA.Mbundu also claims that VAE SA’s bank guaranteed ‘bid security was issued in the wrong name, which should have disqualified VAE SA from the tender process’.Mbundu said that she is aware that ‘a court will be reluctant to set a tender aside if the work is done or partially done’, which would require an urgent necessity to stop the delivery of rails.