Hertta- Maria Amutenja
Africure Pharmaceuticals Namibia’s attempt to contest the Central Procurement Board of Namibia’s (CPBN) decision on the supply of antiretroviral medication to the Ministry of Health and Social Services, has hit a wall after the Windhoek High Court delivered a blow to its legal challenge.
Africure is owned by businessman Shapwa Kanyama.
In the most recent ruling, High Court Judge Orben Sibeya, dismissed Africure’s urgent application, marking the failure of its attempt to halt the implementation of procurement contracts with successful bidders while seeking a review of the CPBN’s selection process.
Acting judge Kobus Miller, in a judgement delivered in February this year on the same case, found Africure’s urgent application to be based on “self-created urgency” and subsequently struck the case off the court roll.
“This application was brought to court on an urgent basis. The applicant filed an urgent application that was struck from the roll on 1 February 2024, for lack of service of the application on three of the respondents. The applicant brought another urgent application that was struck from the roll on 28 February 2024, for lack of urgency.
The applicant then filed this application to be heard on the urgency to stay the implementation of the tender and/or contract awarded to the successful bidders to supply pharmaceuticals pending the review that is yet to be amended. The respondents opposed the urgent application and raised several points of law in limine including lack of urgency,” said Sibeya.
Sibeya, in his judgement, said the threat of irreparable harm alone is insufficient to warrant urgency in legal proceedings.
“The applicant’s non-compliance with the Rules of this Court about periods for service of the application, giving notice to parties and exchange of pleadings as contemplated in rule 73 of the Rules of this Court is refused and the application is struck from the roll for lack of urgency,” said Sibeya.
According to documents filed at the High Court, the decision comes amidst Africure’s assertions that it is a manufacturer of ARVs and should thus have been given preference in the tender process.
However, the CPBN argued that Africure is not a registered local manufacturer of ARVs and lacks the necessary licences for the products in question.
Africure’s bid for the supply of ARVs involved sourcing medication from an Indian manufacturer, according to CPBN Chairperson Amon Ngavetene. This revelation further undermined Africure’s claim for preference based on local sourcing directives.
Judge Sibeya’s ruling not only dismisses Africure’s challenge but also orders the company to cover the legal costs incurred by the CPBN, the minister of Health and Social Services, the minister of Finance and Public Enterprises and the competitor, Windhoek Medical Solutions.
Last year Kanyama, through his company, approached the court asking for a temporary order to stop new contracts from being put into action until the review process is completed.
