Justicia Shipena
The High Court has ruled that the Namibia Fish Consumption Promotion Trust was properly served with procurement review papers by email and failed to prove that it did not receive them.
The court this week dismissed a procurement review application by the Namibia Fish Consumption Promotion Trust.
The application relates to a procurement process for consultancy services advertised by the Trust.
In June 2025, the Review Panel selected Gamal Rifai Architects as the successful bidder.
Several unsuccessful bidders then applied for reconsideration, as allowed under the Public Procurement Act.
The Trust dismissed those reconsideration applications on 27 June 2025.
One of the bidders then lodged a review application with the Review Panel in terms of section 59(1) of the Act.
The review application was sent to the Trust by email on 4 July 2025.
The Trust argued that it never received the email and said the review hearing held on 21 July 2025 should not have gone ahead.
It maintained that the review process was irregular because it was not properly served and should be set aside.
Toivo Nuugulu Architects Incorporated, which is a fourth respondent in the matter, however, produced a printout of the email and a delivery note showing that the review application was sent to the Trust’s email address.
The court found that the address belonged to the Trust and had been used before by the parties to exchange documents.
High Court judge Lotta Ambunda in her ruling stated that the law does not exclude service by email and that what matters is proof that the email was delivered, not proof that it was actually read.
“Regulation 43(2) does not exclude service via email and the parties have previously exchanged documents via email,” Ambunda said.
She explained that when email is used, the sender must show that the message reached the intended address. In this case, the delivery note and email records met that requirement.
“Irregularity occurs which would render the first and second defendants’ decision liable to be set aside only if there is no proof that the email was delivered to the applicant.”
Ambunda added that people sometimes do not receive emails sent by legitimate sources, but that this alone does not prove service occurred.
“It is therefore improper for the applicant to rely on such evidence in these proceedings to set aside the decision of the first and second respondent,” she said.
The court also found that the Trust had several chances to raise its concerns during the review process but failed to provide evidence that could change the outcome.
Ambunda said the Trust did not place convincing proof before the court to show that the email was never delivered.
The court ruled that the Review Panel acted lawfully and that its decision should not be overturned.
