Central Procurement Board of Namibia v Pamo Trading Enterprises (Pty) Ltd (SCR 5/2024) [2025] NASC 4 (24 March 2025)

# Central Procurement Board of Namibia v Pamo Trading Enterprises (Pty) Ltd (SCR 5/2024) [2025] NASC 4 (24 March 2025) [ __](https://api.whatsapp.com/send?text=https://namiblii.org/akn/na/judgment/nasc/2025/4/eng@2025-03-24) [ __](https://twitter.com/intent/tweet?text=https://namiblii.org/akn/na/judgment/nasc/2025/4/eng@2025-03-24) [ __](https://www.facebook.com/sharer/sharer.php?u=https://namiblii.org/akn/na/judgment/nasc/2025/4/eng@2025-03-24) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://namiblii.org/akn/na/judgment/nasc/2025/4/eng@2025-03-24) [ __](mailto:?subject=Take a look at this document from NamibLII: Central Procurement Board of Namibia v Pamo …&body=https://namiblii.org/akn/na/judgment/nasc/2025/4/eng@2025-03-24) [ Download DOCX (100.0 KB) ](/akn/na/judgment/nasc/2025/4/eng@2025-03-24/source) Toggle dropdown * [Download PDF](/akn/na/judgment/nasc/2025/4/eng@2025-03-24/source.pdf) Report a problem __ * Share * [ Download DOCX (100.0 KB) ](/akn/na/judgment/nasc/2025/4/eng@2025-03-24/source) * [Download PDF](/akn/na/judgment/nasc/2025/4/eng@2025-03-24/source.pdf) * * * * * Report a problem __ ##### Central Procurement Board of Namibia v Pamo Trading Enterprises (Pty) Ltd (SCR 5/2024) [2025] NASC 4 (24 March 2025) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Central Procurement Board of Namibia v Pamo Trading Enterprises (Pty) Ltd (SCR 5/2024) [2025] NASC 4 (24 March 2025) Copy Media Neutral Citation [2025] NASC 4 Copy Hearing date 4 March 2025 Court [Supreme Court](/judgments/NASC/) Case number SCR 5/2024 Judges [Damaseb DCJ](/judgments/all/?judges=Damaseb%20DCJ), [Angula JA](/judgments/all/?judges=Angula%20JA), [Ueitele AJA](/judgments/all/?judges=Ueitele%20AJA) Judgment date 24 March 2025 Language English Summary Read full summary * * * Skip to document content **REPORTABLE** CASE NO: SCR 5/2024 **IN THE SUPREME COURT OF NAMIBIA** In the matter between: **CENTRAL PROCUREMENT BOARD OF NAMIBIA** | | **First Applicant** ---|---|--- **AMON NGAVETENE** | | **Second Applicant** **ONO-ROBBY A NANGOLO** | | **Third Applicant** **MARTINS K KAMBULU** | | **Fourth Applicant** **HILYA NANDANGO- HERMAN** | | **Fifth Applicant** **EFAISHE N NGHIIDIPAA** | | **Sixth Applicant** **JULINDA! GARUS-OAS** | | **Seventh Applicant** **MARY NDESHI HAFELA SHIIMI** | | **Eighth Applicant** **LUCIA KAZETJIKURIA** | | **Ninth Applicant** **E SHIPONENI** | | **Tenth Applicant** | | and | | | | **PAMO TRADING ENTERPRISES (PTY) LTD** | | **First Respondent** **THE MINISTER OF EDUCATION, ARTS AND CULTURE** | | **Second Respondent** **THE MINISTER OF FINANCE** | | **Third Respondent** **THE REVIEW PANEL** | | **Fourth Respondent** **Coram:** DAMASEB DCJ, ANGULA JA et UEITELE AJA **Heard: 4 March 2025** **Delivered: 24 March 2025** **Summary:** The present review which was brought in terms of s 16 of the Supreme Court [Act 15 of 1990](/akn/na/act/1990/15) (the Act) concerns several orders by the court a quo in the course of an application for contempt of court against members (present and past) of the first applicant. The contempt of court application arises from the alleged failure by the board members to comply with a court order which arose in the following circumstances: On 12 June 2020, the Central Procurement Board of Namibia (CPBN) (the applicant) advertised a tender for the procurement of foodstuffs for government school hostels on behalf of the Ministry of Education, Arts and Culture. The tender, referenced G/ONB/CPBN-1/2020, lacked a scoring sheet (matrix) in the instructions to bidders, which is essential for the fair and objective evaluation of bids. This scoring matrix was confidential and not shared with bidders. In February 2021, the CPBN issued a Notice of Selection of Award and the first respondent was one of the unsuccessful bidders. The first respondent (Pamo) filed a review application with the Review Panel, which on 18 May 2021, ordered the CPBN to re-evaluate the bids based on specific criteria and methodology. The CPBN Bid Evaluation Committee (BEC) re-evaluated the bids but concluded that it was impossible to competitively evaluate them due to the absence of the scoring matrix. Consequently, the CPBN decided to cancel the tender on 7 October 2021. The first respondent sought a court order to compel the CPBN to comply with the Review Panel’s order, which was granted unopposed on 14 March 2023. The bids were re-evaluated again, but the BEC ultimately recommended cancelling the tender due to non-responsiveness and the expiration of the bid validity period. The CPBN decided to seek views from interested parties before making a final decision. The first respondent made representations against the cancellation, leading to further legal proceedings, including an application for contempt of court which was launched on 24 October 2023. On 7 December 2023, the CPBN decided to cancel the bid. According to Pamo, the directors committed contempt by willfully disobeying the court order of 14 March 2023, requiring the CPBN and its board members to re-evaluate the bids in full compliance with a previous order from the Review Panel dated 18 May 2021. Despite the court order, the CPBN failed to re-evaluate the bids as required. Pamo argued that the CPBN provided various excuses for not complying, including the expiration of bid validity periods and the inability to re-evaluate bids without the undisclosed scoring sheet. According to Pamo, the CPBN’s actions, including issuing a notice to cancel the bidding process again, demonstrate a willful disregard for the court order. Moreover, the CPBN did not seek extensions of the bid validity periods from the bidders, as required by the Review Panel’s order and the court order. The CPBN’s legal department and bid evaluation committee had conflicting interpretations of the Review Panel’s order, leading to further delays and non-compliance. The CPBN’s decision to cancel the bidding process instead of re-evaluating the bids as ordered by the court was seen as an act to circumvent the court’s order of 14 March 2023. According to Pamo, this non-compliance and the subsequent actions taken by the CPBN demonstrate a willful and/or mala fide disregard for the court’s order, constituting contempt of court. Pamo requested that the CPBN and its board members be granted seven calendar days to purge their contempt, and a _rule nisi_ calling upon the CPBN and any other interested party to show cause why the court should not sentence the CPBN and its board members to a fine or imprisonment or both, and why they should not be jointly and severally liable for the costs order. The Board denied contempt of court by detailing the actions it had taken to comply with the court order of 14 March 2023. It was argued that the Board sought guidance from its Legal and Compliance Unit and appointed a Bid Evaluation Committee (BEC) to re-evaluate the bids as required by the court order. The BEC commenced its work on 3 July 2023 and finalised the re-evaluation on 15 September 2023. The BEC’s report indicated that the evaluation process was hindered by the absence of a Scoring Matrix for Phase 2, making it impossible to determine which bidders met the required criteria. The BEC recommended canceling the bidding process due to the expired bid validity period and the non-responsiveness of all bids. The Board considered the BEC’s recommendation and decided to give bidders an opportunity to be heard before making a final decision. On 5 October 2023, the CPBN issued a notice to bidders, including Pamo, requesting their comments on the BEC’s recommendation. The Board received and considered these comments. The Board emphasised that it was still in the process of implementing the court order and had not yet made a final decision to cancel the bids by the time the application for contempt was filed. It argued that the re-evaluation of the bids had taken place as directed by the court, and the Board is following due process. In light of the above, the Board denied that its directors were in contempt of the court order and submitted that the finding of contempt would be unjustified in the circumstances of this matter as it would neither be correct, competent nor appropriate. The court heard arguments on 8 December 2023 and postponed judgment to 19 January 2024. However, on that date, no judgment was delivered because the court foresaw a possibility of referring the matter to oral evidence. Instead, the court asked Pamo to specify the issues, questions, and witnesses to testify on the issues so identified. On 2 February 2024, Pamo submitted a summary listing the witnesses to be cross-examined, and emphasised that there is a need to assess individual board members’ mindsets. However, on 5 February 2024, the court clarified that its 19 January 2024 order was incorrect and issued a varied order requiring parties to indicate what questions should be answered and who should be called to give evidence. Subsequently, CPBN’s counsel raised concerns about inconsistencies between the court’s order and its reasoning, and indicated that it would seek a review in terms of s 16. On 12 February 2024, the court postponed the matter to 26 March 2024 and permitted Pamo to subpoena witnesses. _Held that,_ considered against the narrow focus of the inquiry contemplated by the presiding judge on 19 January 2024, the procedure had morphed into a roving open-ended inquiry inconsistent with what rule 67 of the High Court Rules is meant for. That was possible because the court lost control of the process and invited Pamo to the proverbial dinner on an open menu determined by Pamo and not the court. _Held that_ , there is merit in the CPBN’s complaint that the court abdicated to Pamo its responsibility to define the contours of the referral causing it prejudice. It is also unclear what dispute of fact the court wanted resolved under the rule 67 procedure. _Held further_ _that_ , the delineation of that dispute and the contours of a rule 67 procedure is the duty of the judge and not the parties. The court irregularly abdicated that responsibity to the parties. _Held that,_ interference by this Court is necessary because the presiding judge’s conduct of the proceedings after 19 January 2024 has created uncertainty and confusion as to what exactly is to occur during the rule 67 procedure. _Held further_ _that_ , a trier of fact in motion proceedings retains the discretion to refer a matter to oral evidence even without being prompted by the parties. _Held that,_ the lack of precision and clarity of the orders made by the judge at critical stages of the proceedings, breached a fundamental principle underlying rule 67: the procedure is not intended to be a ‘roving inquiry with very loose and vague terms of reference’ and the evidence to be elicited should be clearly, concisely and unambiguously identified. _Held further that,_ it is axiomatic that the parties must be afforded ample opportunity to make representations to the court on how it must proceed in terms of rule 67 in the light of the court’s determination that it is unable to resolve disputes of fact on the papers. _Held_ _that_ rule 67 referral should not be open-ended or overly wide. The procedure adopted by the presiding judge lacks this attribute. _Held further_ _that_ barring the irregularities established on the record, the court a quo should be allowed to continue to finalise the contempt procedure as it sees fit in accordance with the principles set out in this judgment. _Held that_ CPBN made unfounded allegations, amounting to scandalizing the judge. This conduct warrants special censure and disqualifies CPBN from a costs order despite its success. _Held that_ the matter is remitted to the presiding judge to make determinations according to law for referral to oral evidence in terms of rule 67 of the High Court Rules. _______________________________________________________________ **REVIEW JUDGMENT** _______________________________________________________________ DAMASEB DCJ (ANGULA JA and UEITELE AJA concurring): _Background_ 1. Section 16 of the Supreme Court [Act 15 of 1990](/akn/na/act/1990/15) (the Act) vests this Court with an exceptional and extra-ordinary review power. It states: ‘… 1. In addition to any jurisdiction conferred upon it by this Act, the Supreme Court shall, subject to the provisions of this section and section 20 have the jurisdiction to review the proceedings of the High Court or any lower court, or any administrative tribunal or authority established or instituted by or under any law. 2. The jurisdiction referred to in subsection (1) may be exercised by the Supreme Court mero motu whenever it comes to the notice of the Supreme Court or any judge of that court that an irregularity has occurred in any proceedings referred to in that subsection, notwithstanding that such proceedings are not subject to an appeal or other proceedings before the Supreme Court: Provided that nothing in this section contained shall be construed as conferring upon any person any right to institute any such review proceedings in the Supreme Court as a court of first instance. 3. The Chief Justice or any other judge of the Supreme Court designated for that purpose by the Chief Justice, may give such directions as may appear to him or her to be just and expedient in any particular case where the Supreme Court exercises its jurisdiction in terms of this section, and provision may, subject to any such direction, be made in the rules of court for any procedures to be followed in such cases. 4. The provisions of this section shall not be construed as in any way limiting the powers of the High Court as existing at the commencement of this Act or as depriving that court of any review jurisdiction which could lawfully be exercised by it at such commencement.’ 2. The power of review under s 16 relates to both completed and uncompleted proceedings. 3. The present case concerns a s 16 review brought by the applicants against an interlocutory ruling by a judge of the High Court purporting to refer to oral evidence disputes of fact in a contempt of court application which the judge determined she was unable to resolve on the papers. It is the procedure employed by the court a quo after failing to decide the contempt of court application on the affidavits that resulted in the present review proceedings. 4. Under the Public Procurement [Act 15 of 2015](/akn/na/act/2015/15) (the Act) the first applicant (CPBN) is responsible for inviting tenders on behalf of Ministries, Offices and Agencies, receiving bids, evaluating them and awarding them. If a tender is cancelled, it may be re-advertised. 5. The first respondent (Pamo) was one of several bidders for a Ministry of Education, Arts and Culture (the Ministry) tender for the supply of food stuffs to school hostels (the school hostels food tender). The school hostels food tender was advertised on 12 June 2020 by the CPBN. In February 2021, the CPBN issued a notice of publication of award for the school hostels food tender and Pamo was unsuccessful. Dissatisfied with the outcome, Pamo filed a review application to the Review Panel. 6. On 18 May 2021, the Review Panel ordered the CPBN to re-evaluate the bids using specific criteria and methodology. On 7 October 2021, the CPBN’s Bid Evaluation Committee (BEC) resolved that a re-evaluation was not possible due to the absence of a scoring matrix and decided to cancel the tender. The scoring matrix, it is alleged by the CPBN, is an important tool used to objectively and competitively score bids. 7. Aggrieved by that determination, Pamo approached the High Court for urgent relief and on 14 March 2023 obtained an order as follows: ‘. . . 1. The 1st respondent’s decision, purportedly taken on 7 December 2021, set out in in the Notice of Bid of Cancellation purportedly signed by the 2nd respondent on 12 October 2021, to cancel the bidding process of Procurement Reference Number: G/ONB/CPBN-01/2020 (Procurement of Supply of Foodstuffs to Government School Hostels) is hereby reviewed and set aside. 2. The 1st respondent is ordered to re-evaluate the bids in Procurement Reference Number: G/ONB/CPBN-01/2020 (Procurement of Supply of Foodstuffs to Government School Hostels) in full compliance with the order of the 5th respondent decided on 18 March 2021. 3. The 1st and 2nd respondents are ordered to pay the applicant’s costs of one instructing and two instructed counsel. 2. The fifty-seventh respondent’s conditional counter-application: 1. The 1st respondent’s decision that the 57th respondent is invalid, taken on or about 17 December 2021, is hereby reviewed and set aside. 2. The 1st respondent is ordered to re-evaluate the bids, including the bid of the 57th respondent in Procurement Reference Number: G/ONB/CPBN-01/2020 (Procurement of Supply of Foodstuffs to Government School Hostels) in full compliance with the following order of the 5th respondent of 18 March 2021, namely: ‘That the 1st respondent re-evaluates the bids that contained Social Security Commission’s Good Standing Certificates issued in respect of this bid.’ 3. The 1st respondent is ordered to pay the 57th respondent’s costs occasioned by this application, such costs to include the costs of one instructing and one instructed counsel. 3. The matter is removed from the roll, and regarded as finalised.’ 8. After the court order, the CPBN re-activated the BEC ostensibly to comply with the 14 March 2023 court order. The BEC commenced its work of re-evaluating the bids on 03 July 2023 and finalised the process on 15 September 2023. Ultimately the BEC provided its report to the CPBN on 28 September 2023. In its report, the BEC concluded that: ‘The bid evaluation Committee followed the evaluation process as stipulated in section III of the bidding document. The BEC established that Phase 2: Financial Evaluation Criteria- had an extra requirement which stated that only bidders who obtained 70% or more will be considered for Phase 3. However, the bidding document did not include a Scoring Matrix outlining how Phase 2 will be scored, and given the Review Panel Order of 18 May 2021, that instructed that the re-evaluation of the bids must be done strictly in accordance with the criteria and methodology set out in the instructions to bidders to the extent that they are consistent with the provisions of the law, the BEC was unable to carry out a scoring of Phase 2 to determine the bidders that attained 70% or more for Phase 2- Financial Evaluation.’ 9. According to the BEC, in the absence of a scoring matrix as part of the instructions to bidders in the Bidding Document, it was unable to make a determination which of the bidders obtained 70 per cent or more in the Phase 2 Financial ̶ Evaluation Criteria ̶ a prerequisite for Phase 3 of the Evaluation. Consequently, it was unable to proceed with further evaluation which would have assisted to determine the successful bidders based on the competitive objective criteria. The BEC therefore recommended to the CPBN to cancel the entire bidding process and the CPBN gave notice of cancellation of the tender. In effect, the CPBN decided not to comply with the court order of 14 March 2023. _The contempt application_ 10. Aggrieved by the CPBN’s conduct in relation to the 14 March 2023 court order, Pamo instituted urgent contempt of court proceedings alleging that CPBN’s directors, past and present (second to eleventh applicants) wilfully and _mala fide_ failed to give effect to a binding court order and should, for that reason, be committed to gaol for contempt. 11. The CPBN and the cited directors (past and present) opposed the contempt proceedings and filed opposing papers. The gravamen of their opposition to the contempt proceedings is that they made a genuine effort to comply with the court order but that because of the absence of a scoring matrix, they were unable to evaluate the bids and that accordingly their non-compliance with the court order was not wilful and _mala fide._ 12. After close of pleadings, the presiding judge heard the opposed application on 8 December 2023 and reserved judgment for 19 January 2024. On the day reserved for judgment, the learned judge was not able to deliver the judgment because she felt unable to resolve the disputes of fact in the contempt application on the papers. The presiding judge made observations to the effect that there was a ‘possibility’ that she would refer the disputed issues to oral evidence. 13. It is the procedure employed by the court a quo after failing to decide the contempt of court application on the affidavits that resulted in the present review proceedings. The applicants contend that the learned judge a quo committed several irregularities in the procedure she adopted in the further conduct of the contempt of court application. _The review application_ 14. Whilst the proceedings were pending a quo, the applicants approached the Chief Justice to invoke s 16 of the Supreme Court Act. 15. The request was designated to me in terms of s 16(3) and based on the allegations made in the review request, on 25 September 2024 I invoked s 16 whereafter, this Court’s Registrar invited the applicants in Proforma form to file an affidavit setting out the factual bases for the intended application, the relief they seek and to serve it on Pamo and the judge whose orders were sought to be reviewed and set aside. 16. Pamo filed opposing papers but no response was received from the presiding judge. I mention this because Pamo had initially raised the issue that the presiding judge was not served with the review application. In Pamo’s heads of argument and in oral argument that issue was not pursued and nothing further needs to be said about it. _The test for s 16 review_ 17. It is trite that an irregularity in proceedings does not mean an incorrect judgment or the result but the method of a trial. The applicant for review bears the onus and must establish that the review relates to an irregularity in the proceedings. The irregularity need not be apparent from the proceedings but may be established by evidence _aliunde_ the record. What constitutes a reviewable irregularity depends on facts and circumstances of each case and the legal framework relevant to the matter, including the Namibian Constitution and in particular the fair trial provisions guaranteed under Art 12. The grounds of review must expressly or by necessary implication identify the irregularities relied on in each instance. The applicant has to establish that the irregularity complained of resulted in or is likely to result in an injustice or prejudice. _The proceedings a quo_ 18. Oral argument in the contempt application was first heard by the court a quo on 8 December 2023. On that occasion, the position taken by Pamo’s counsel was to ask the court for referral to cross-examination ‘to test the wilfulness and mala fides of the first respondent’, and that the witnesses to be cross-examined are the CPBN’s board members, the BEC’s chairperson, Dominic Shikola, and the CPBN’s internal legal advisor, Festus Hamukwaya. According to Pamo, whether or not the order of 14 March 2023 was complied with would be ‘resolved by interpreting the order and no further evidence is necessary’. Therefore, Pamo’s counsel submitted, wilfulness and _mala fides_ were the only issues incapable of resolution on the papers and requiring oral evidence. 19. On the contrary, counsel for the CPBN argued that there were no real disputes of facts in the contempt application meriting referral to oral evidence and that any such disputes could be resolved on the papers in favor of the respondents. Additionally, the first respondent submitted that Pamo had not set out any ‘specific set of issues. . . [which] should be referred to oral evidence’. 20. The court then postponed the matter to 19 January 2024 which is when the impugned proceedings commenced. On that date, Pamo’s counsel was present when the matter was called and the applicants’ counsel, Ms Da Silva, was absent. 21. In Ms Da Silva’s absence, the learned judge stated the following: 1. That she had a problem ‘drafting the judgment’; 2. There was a ‘real possibility’ that she would refer the matter to oral evidence; 3. She needed assistance with the specific questions that should be answered; 4. In view of Pamo’s intimation in their heads of argument for 8 December 2023 that it wants to cross-examine CPBN’s officials associated with the adjudication of the bids, whether it was ‘necessary to call all the people’; 5. The matter would be postponed for Pamo ‘just to formulate the questions you wish to be answered’. 22. Pamo’s counsel thereupon expressed uncertainty ‘whether this should be an agreed statement or [whether he would] need [Pamo’s] cooperation with us’. 23. The court retorted: ‘From your heads it is not clear exactly what questions you want answered as I can presume it is about the two sessions’. 24. The essence of the direction given to Pamo’s counsel in the absence of his opposite counsel was to furnish the court (a) with a list of witnesses they wished to call; (b) the reason they wanted to call them and (c) the questions that had to be answered to prove contempt. 25. Then Ms Da Silva for the CPBN made a belated appearance. In Ms Da Silva’s presence, the court repeated that there was the ‘possibility’ she would refer ‘this matter to oral evidence’. That the court needed to ‘know the questions to be answered’ and invited Ms Da Silva to prepare ‘submissions’ on ‘specific issues that need to be resolved as well as the reason why the witnesses should be called’. 26. With Ms Da Silva present, the court proceeded to identify ‘the conflict on the papers’ to be whether or not a ‘calculation’ was possible and that ‘if we can refer to evidence that we can deal with that’ ‘because that is the crux of the contempt of court’. The court clarified that if it was proved that the ‘calculation’ was possible, contempt would be inferred and vice versa. 27. In the court’s own words: ‘For me to determine whether there was actually contempt I need to [be] clear on exactly what was done or what was not done’. 28. Thereupon, Ms Da Silva sought clarification if the dispute relates to whether or not ‘calculation’ was possible and specifically asked if ‘the question will be based around that specific issue’. The court answered: ‘Yes, because to prove the _mala fides_ ’ and that ‘if you are correct that the calculation could [not] be done, then there is no _mala fides_ and if the calculation can be done then there is a problem with regard to the _mala fides_ ’. 29. The views expressed by the presiding judge on 19 January 2024 were against the backdrop (in other words with full knowledge) of Pamo’s counsel’s request on 8 December 2023 for referral to cross-examination ‘to test the wilfulness and _mala fides_ of the respondent.’ 30. The court then issued the following order: ‘1. The case is postponed to 05/02/2024 at 09:00 for Status Hearing (Reason: parties must file a summary on oral evidence). 2\. The parties must file their short summaries on oral evidence on or before 2 February 2024.’ 31. On 2 February 2024, Pamo delivered the following ‘summary of oral evidence’: ‘[1.] The witnesses which must be cross-examined and the anticipated time such cross-examination will take, are the second to tenth respondents, who are the first respondent’s board members (“CPBN Board Members”), and the bid evaluation committee chairperson, namely: Dominic Shikola,1 each of whom will not take longer than 30 minutes. The only other witness will be Mr. Festus Hamukwaya, the first respondent’s internal legal advisor, whose cross-examination will not take longer than one day. It follows that the cross-examination will be limited to two days. [2.] The eleventh respondent, Ms. Elizabeth Shiponene, the CPBN’s secretary, will also need to be cross-examined because she is in possession of all the relevant minutes (of meetings), and resolutions and as such, she will need to confirm and discover this. [3.] As demonstrated in the papers, there was a clear divide in the decision-making process of the CPBN so much so that the eighth (Ms. Julinda !Garus-Oas) and ninth (Ms. Mary Ndeshihafela Shiimi) respondents recused themselves “..from the Boards discussion in relation to the proceedings instituted by the Applicant.” Obviously, their views and if and how their views were ignored plays an important role in answering the issue (wilfulness or mala fides) of the other board members, or these people themselves, if their withdrawal showed utter disregard to the court’s order in question. [4.] The reason why all the CPBN Board Members should be cross-examined is due to the fact that they themselves must try to explain their own mind set. It is accordingly not possible to make a final determination of contempt of each board member without that person’s mindset being exposed. [5.] As previously pointed out, the views of the bid evaluation committee chairperson (Mr. Dominic Shikola) ran directly against the ultimate decision made by the CPBN. It is not sought to hold Mr. Shikola in contempt but his views and the rationality – or lack thereof - with which it was advanced to the CPBN Board Members will play a pertinent role as to whether or not the CPBN Board Members are in contempt. [6.] Mr. Shikola, in turn, was in direct contact and expressed his views to the internal legal advisor, Mr. Hamukwaya. It is accordingly clear that the views of Mr. Hamukwaya (as a lawyer) would have played a material part of the decision-making process. It would be in utter contempt of the court order if Mr. Hamukwaya’s advice was patently and utterly wrong, while the CPBN Board Members knew it, to determine whether anyone of them acted with wilfulness or mala fide. [7.] The applicant stand by its undertaking to limit the cross-examination to not more than two days.’ 32. On 5 February 2024, instructed counsel for the CPBN, Ms Shifotoka, inquired about the effect of the order of 19 January 2024. The presiding judge replied that the order was wrong and that counsel should have regard to the transcript of 19 January 2024 proceedings. 33. The court substituted the ‘wrong order’ in the following terms: ‘IT IS HEREBY ORDERED THAT: 1. The case is postponed to 05/02/2024 at 09:00 for Status hearing (Reason: parties to indicate what questions should be answered and who should be called to give evidence). 2. The parties must file their short summaries on the above on or before 2 February 2024’. 34. It bears mention that at that stage of the proceedings, the court had not made a binding order to refer the matter to oral evidence. The court only foresaw the possibility of referring the matter to oral evidence on whether or not ‘calculation’ was possible. 35. On 5 February 2024 the court a quo made an order postponing the matter to 12 February 2024 for hearing and on 9 February 2024 CPBN’s counsel asked the court to give written reasons for the order. In that regard, the CPBN’s counsel filed a status report stating the following: ‘Be pleased to take notice that pursuant to the order of 19 January 2024 and the subsequent status hearing on 5 February 2024 the first to the tenth respondents report as follows: 1. The first to tenth respondents have considered the court order on 19 January 2024 and the reasons for the order set out in the transcribed record, attached as A to this report. 2. There is a disparity between the court order of January 2024 and the reasons of the Court. The court order of 19 January 2024 is not supported by the reasons advanced by the Court, in the transcribed record annexure A. 3. The first to tenth respondents require the court’s reasons for the Court Order: ‘parties must file short summaries on oral evidence’ which requires the parties (including the first to tenth respondents) to file short summaries on oral evidence. 4. In the event that the Court’s reasons for the 19 January 2024 order are those that appear in the transcribed record, annexure A hereto, then the first to the tenth respondents will exercise their right to apply for a review of the order of 19 January 2024 in terms of section 16 of the Supreme Court Act.’ 36. On 12 February 2024, the court postponed the matter to 26 March 2024 for hearing and authorised Pamo to ‘subpoena the witnesses it wishes to call for the hearing’. That resulted in Pamo subpoenaing 12 witnesses under wide-ranging subpoenas _duces tecum_ : ‘in order to testify in regard to all matters within [their] knowledge relating to the [contempt] application’ and to ‘bring with him … and to produce to Court: 1. Any and all: 1. resolutions taken by the first respondent; 2. minutes of meetings of the first respondent; and 3. audio recordings of any meetings; that relates to: 4. the Order of this Court given under case number HC-MD-CIV-MOT-REV-2021/00422 made on 14 March 2023; 5. the first respondent’s intended decision to cancel the bid, with Procurement Reference Number G/ONB/CPBN-01/2020, communicated to all bidders dated 5 October 2023; and 6. the first respondent’s decision to cancel the bid, with Procurement Reference Number: G/ONB/CPBN-01/2020, communicated to all bidders dated 7 December 2023. 2. Any and all internal and/or external memorandums and/or reports and/or correspondence produced or authored by: 1. the appointed Bid Evaluation Committees chaired by Mr. Dominic Shikola and Mr. Markus Ipangelwa, respectively; and 2. the first respondent’s appointed legal advisor, Mr Festus Hamukwaya, and or by any other person employed by the first respondent’s legal department; that is relevant to: 2.1. the Order of this Court given under case number HC-MD-CIV-MOT-REV-2021/00422 made on 14 March 2023; 2.2. the first respondent’s intended decision to cancel the bid, with Procurement Reference Number: G/ONG/CPBN-01/2020, communicated to all bidders dated 5 October 2023; and 2.3. the first respondent’s decision to cancel the bid, with Procurement Reference Number: G/ONB/CPBN-01/2020, communicated to all bidders dated 7 December 2023. 3. Any and all bid evaluation committee reports and/or evaluation updates produced by the respective appointed Bid Evaluation Committees, chaired by both Mr. Dominic Shikola and Mr. Markus Ipangelwa, respectively, relevant to the evaluation and re-evaluation of the bid under Procurement Reference Number: G/ONB/CPBN-01/2020.’ _Orders sought to be reviewed and grounds for review_ 37. The presiding judge is alleged to have committed several procedural irregularities, including: 1. Seeking directions from Pamo to identify issues and witnesses for oral evidence. 2. Issuing orders that were contrary to the exchange between the court and Pamo's legal representative. 3. Abdicating the court's discretion to Pamo in identifying issues and witnesses for oral evidence, and the questions that must be answered to prove contempt. 38. The first order sought to be reviewed is that of 19 January 2024 (later varied), in terms whereof the court allegedly directed only Pamo to identify issues and witnesses for oral evidence ̶ allegedly in violation of rule 67 of the High Court Rules. CPBN contends that the court a quo acted irregularly by seeking directions from Pamo without a formal application for referral to oral evidence. It states that a party must establish its case in the founding papers, and if Pamo failed to do so in its affidavits, the court should not have granted it an opportunity to rectify the omission. Furthermore, CPBN asserts that only the court has the authority to determine which issues require oral evidence, yet in this instance, the court improperly relied on a litigant in a contested matter to determine the issue(s) that require oral evidence. 39. The second order sought to be reviewed is the one of 5 February 2024 which was granted after Pamo's counsels filed a status report and a ‘summary’ on oral evidence. 40. The third impugned order is that of 12 February 2024 in terms of which the court varied the 19 January 2024 order and directed the parties to file short ‘summaries’ on the questions to be answered and who should be called to give evidence. Related to that is the order which authorised Pamo to subpoena the witnesses identified in its status report of 2 February 2024. 41. The fourth alleged irregularity is when the court a quo proceeded on 26 March 2024 to hear the evidence of Mr. Dominic Shikola despite the applicants’ ‘protestations’ and without providing reasons for the previous orders. 42. The applicants also seek to set aside the presiding judge’s ruling of 30 April 2024, insofar as it directed that the matter proceed to oral evidence. The ruling sought to clarify the court’s approach during the 19 January 2024 hearing, when it considered referring the matter to oral evidence and requested the parties to define the key issues. To determine whether the respondents acted in bad faith and were in contempt, the court ruled that oral evidence was necessary. _Allegations in support of review_ 43. CPBN’s key contention is that, at the time the order was issued, a ‘full-scale application’ for referral to oral evidence was still pending. It asserts that the court a quo committed an irregularity by soliciting directions from Pamo regarding the questions to be addressed and the witnesses to be called. It is said that the discretion to define the issues for referral lies with the court, not a litigant, and that if a witness is to be called or cross-examined, the court must specify the precise issue and identify the witnesses for that purpose. Their principal complaint is that the presiding judge, rather than defining the issues herself, abdicated this discretion to Pamo. 44. According to CPBN, the order of 19 January 2024 and Pamo’s summary of 2 February 2024 ̶ subsequently acted upon by the court ̶ effectively converted the matter into a full-scale trial under the guise of a referral to oral evidence. They maintain that Pamo’s request for referral during contempt proceedings did not make clear whether it was for oral evidence or a referral to trial. 45. Further, the CPBN asserts that the procedure adopted by the presiding judge infringed upon their right to a fair trial as respondents in civil contempt proceedings. Since Pamo initiated the contempt application, it bore the burden of proving that the CPBN failed to implement the Review Panel’s order of 18 May 2021. However, the court’s order effectively relieved Pamo of this evidential burden and instead compelled the applicants to prove Pamo’s case under threat of imprisonment. In addition, because their potential witnesses had been subpoenaed by Pamo and are no longer available as the CPBN’s witnesses, CPBN claims they were irregularly denied their constitutional right to challenge Pamo and to cross-examine its witnesses. 46. The CPBN contends that the court irregularly proceeded with oral evidence on 26 March 2024 despite their request for reasons for prior court orders. The failure to provide such reasons, they state, resulted in the improper exercise of a discretion under rule 67 and further undermined their right to a fair trial. 47. Additionally, CPBN asserts that the judge improperly deferred to Pamo on whether two board members, Ms Mary Shiimi and Ms Julinda !Garus-Oas, should testify, despite their prior recusal on their own accord from the relevant board proceedings. The court’s authorisation of subpoenas against them without defining the issues for which oral evidence was required was, according to CPBN, the presiding judge’s abdication of a judicial discretion and prejudicial to the board members. 48. The CPBN further alleges that the orders issued by the court a quo are vague and fail to provide clear guidance on compliance. Even from the court’s reasons issued on 30 April 2023, it remains unclear what facts were to be determined through oral evidence. This lack of clarity, they claim, deprived them of a fair opportunity to prepare and address the court meaningfully. 49. According to CPBN, the cumulative procedural irregularities render the court a quo’s orders unreasonable and unfair and therefore reviewable. They seek an order that the orders of the court purporting to determine the procedure for referral to oral evidence be set aside. _Pamo’s rebuttal_ 50. Pamo states that the case presented in the applicants’ founding affidavit in the review significantly contradicts the earlier affidavit when they approached the Chief Justice to invoke s 16, raising serious questions about the applicants' credibility. Pamo contends that this inconsistency undermines the foundation of the applicants’ case, as it suggests a narrative intended to discredit the presiding judge. 51. Pamo criticises the applicants for accusing the presiding judge of dishonesty and improper conduct without any credible basis, by suggesting that she only invited Pamo to make a summary of oral evidence but then recorded that both parties were invited to provide summaries. It is alleged that these serious allegations were made recklessly and without sufficient evidence, thereby casting doubt on the judge’s impartiality and undermining the administration of justice. According to Pamo, the allegedly unfounded accusations are not only defamatory but also threaten the integrity of the judicial process by suggesting judicial bias where none exists. 52. Pamo denies that it failed to apply for a referral to oral evidence as required by rule 67, emphasising that it did so prior to the hearing of the contempt application on the question whether the non-compliance with the court order was willful and _mala fide_. It states that it made known this intent in the heads of argument intended for the 8 December 2023 hearing - identifying relevant witnesses and estimating how long it would take for them to be cross-examined. Pamo rejects accusations of improperly influencing the court’s discretion under rule 67. 53. Pamo asserts that both parties were allowed to make submissions and to identify key issues and that the court did not exclude the CPBN from that opportunity and that the applicants’ claim of bias is unfounded. It stresses that both parties were invited to submit arguments on the issues to be addressed during oral evidence, but the applicants chose not to do so, to their peril. Pamo maintains that it simply followed the court’s directives and did not manipulate the process in any way. 54. Moreover, Pamo maintains that the presiding judge acted within her authority and discretion and that the judge’s actions were above board and did not amount to a reviewable procedural irregularity. _Principles governing referral to oral evidence_ 55. Rule 67 states: ‘(1) Where an application cannot properly be decided on the affidavits the court may dismiss the application or make any order the court considers suitable or proper with the view to ensuring a just and expeditious decision and in particular, but without affecting the generality of the foregoing, it may – 1. direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or her or any other person to be subpoenaed to appear and be examined and cross-examined as a witness; or 2. refer the matter to trial with appropriate directions as to pleadings, definition of issues or any other relevant matter. (2) After hearing an application the court may make no order, except an order for costs, if any, but may grant leave to the applicant to renew the application on the same papers, supplemented by such further affidavits as the case may require or allow.’ 56. _Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd_ 1 lays down that the court has a discretion whether or not to refer disputed facts to oral evidence.2 The discretion is exercisable whether or not either of the parties has applied for leave to invoke the procedure. 57. It has been correctly stated that the court will not order oral evidence:3 ‘… when it is clear that the sole purpose of personal examination would be a fishing excursion designed to elicit admissions that might supplement the allegations in the supporting affidavit; or when to accede to a request that oral evidence should be heard would be to direct a roving inquiry with very loose and vague terms of reference or when oral evidence would enable an applicant to amplify affidavits by additional evidence where the affidavits themselves, even if accepted, do not make out a clear case, but leave the case ambiguous, uncertain, or fail to make out a cause of action at all…’ 58. In _Moropa v Chemical Industries National Provident Fund_ 4 Vally J, while discussing an application to refer a matter to oral evidence, correctly remarked as follows at para 13: ‘An application to refer a matter to oral evidence must be timeously brought – an opponent should not be ambushed at the hearing as has occurred here. The application must be clear in its intent and focused on a real dispute of fact. Put differently, a matter should not be referred to oral evidence if no facts are to be elicited. The evidence to be presented must be clearly, concisely and unambiguously identified. To avoid entering the realms of trial, it should not be open-ended or overly wide. A referral to oral evidence is very different from a referral to trial.’ 59. I endorse these statements. The following additional principles apply to a rule 67 procedure. 60. When the court is unable to decide an application on the papers and determines (as happened in this case) that it does not justify dismissal and that oral evidence should be led, it must be clear in the court’s mind what further facts are required for it to make up its mind one way or the other. That will assist the court to resolve the further inquiry: should referral be on specific and clearly defined issue(s) or should the dispute be referred to trial? The choice is binary and each choice has its procedural consequences. Rule 67 provides guidance in that respect. 61. In terms of subrule (a), if oral evidence is to be received on specified issues it should be done either by ordering a deponent to an affidavit to appear personally; by granting leave for a ‘deponent’ to be subpoenaed to appear and be examined and cross-examined as a witness, for ‘any other person’ to be subpoenaed to appear and be examined and cross-examined as a witness; or to make a referral to trial in terms of subrule (b) with appropriate directions as to pleadings, definition of issues or any other relevant matter. 62. Where referral is made on specified issues and witnesses are to be called the default procedure is contained, first, in subrule (a) the High Court Rules relating to calling of witnesses: the witness (whether a ‘deponent’ or ‘any other person’) is first examined and then cross-examined. In the case of a ‘deponent’, evidence in chief is by the party on whose behalf the witness deposed an affidavit in the application and cross-examination will be by the opponent. The allowance made in subrule (a) for ‘any other person’ is an eminently sensible one as it gives the right to each of the parties to specify to the court witnesses (probably, but not necessarily, identified in the respective affidavits) to be subpoenaed on their behalf and to be examined in chief by the party desiring to call that other person and then to be cross-examined by the opponent. 63. Whether in respect of a witness to be called a party must provide a witness statement in terms of rule 92 will depend on whether the witness cooperates with the party wishing to call him or her. If the witness cooperates it is both desirable and necessary that he or she provides a witness statement so that the opponent is not caught by surprise. Not doing so will inevitably lead to delay as the other side would be entitled to a postponement in order to prepare for or to counter the evidence. In principle, I see no reason why an uncooperative witness should not be subpoenaed without a witness statement. 64. Where the referral is to trial in terms of subrule (b), the rule requires that the court gives directions as to pleadings, definition of issues and any other relevant matter. For such an order, guidance may be had from _Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd_ 5 and _West Bank v Hippo Transport Inc (Pty) Ltd._ 6 65. When the point has been reached in application proceedings that the court is unable to decide the matter without the aid of oral evidence, a clear election should be made which of the alternatives available under rule 67 is being adopted. The first inquiry is whether the matter is to be referred to trial versus whether oral evidence should be received on a specified issue by the calling of a ‘deponent’ to testify or ‘any other person’ to be subpoenaed to testify or to be cross-examined. 66. Whatever the choice is, one thing is clear: the court’s order of referral must be clear in its purpose and should focus on clearly delineated dispute(s) of fact. A referral order should not open the door to an open-ended roving inquiry which will assist a party, especially an applicant, to augment and supplement a case not made in the affidavits. 67. In _Konrad v Ndapanda_ 7 this Court stated as follows regarding an application for referral to oral evidence as envisaged under rule 67. ‘[13] . . . The court has a wide discretion in dealing with an application that cannot be decided on the basis of evidence on affidavit _, but such discretion should be exercised in accordance with principle._ . . . [16]. . . The exercise of the court’s discretion in Rule 67 should be read with the overriding objective of the court rules to facilitate the resolution of the real issues in dispute justly and speedily, efficiently and cost effectively as far as practicable.’ (My underlining for emphasis). 68. A rule 67 procedure that does not comply with these principles is irregular. _Did the court abdicate its judicial function to the litigants?_ 69. The applicants complain that the court a quo’s orders are vague and confusing so much so that they do not know what is expected of them. According to the CPBN, instead of specifying the issues to be referred to oral evidence, the presiding judge abdicated her discretion to Pamo. The CPBN maintains that the proper thing was for the court to itself identify the issues to be referred to oral evidence. The criticism is justified. 70. What is apparent from the orders referring the matter to oral evidence is that not only is the issue requiring resolution not defined, but Pamo was given unqualified power to subpoena witnesses and to require them to produce whatever documents Pamo wants to be produced at the hearing. 71. Instead of itself specifying the issues to be referred to oral evidence and defining the ambit of the inquiry during the rule 67 procedure, the court left that responsibility to the parties. (It is not surprising that the applicants did not do anything). Given the vacuum created by the court’s ambiguous orders, Pamo proceeded to issue very wide-ranging subpoenas which include _duces tecum_. In the absence of reasons it is not clear if that is what the court intended. 72. A glaring feature of the proceedings before the presiding judge is the complete absence of reasons that support the various orders. The reasons given on 30 April 2024 purportedly support the varied order given on 5 February 2024 ─ but on the face of it are inconsistent with what the court said on record on 19 January 2024. Besides, by the time those reasons were given a lot had already happened: the Pamo ‘summary’ had been filed; Pamo had already been authorised to and issued subpoenas; and Mr Shikola had testified. When all these things were happening, the applicants were awaiting the court’s reasons. Yet there is no indication what view the court took of the 9 February 2024 status report by the applicants which was a cry for help. In view of their status report of 9 February 2024, the applicants were entitled to reasons before any further steps in the proceedings were taken. 73. There is also no explanation by way of reasons why what was stated on record on 19 January 2024 (rightly or wrongly) to be the limited issue of whether or not calculation was possible, morphed into the state of mind inquiry of wilfulness and mala fides. 74. Equally unsupported by reasons are the following: 1. Subpoenaing of two board members who had recused themselves when the bid was discussed. Recusal ordinarily means that the person is conflicted and there is no suggestion that their recusal was an expression of unhappiness about what was occurring. The absence of reasons does not assist one to understand why the court allowed this extraordinary procedure; 2. Subpoenaing of all board members when the court had clearly expressed a reservation about its necessity; 3. Subpoenaing of a legal advisor to be cross-examined to demonstrate that his legal advice was wrong. This too seems an extraordinary step. It required cogent reasons why a legal advisor should be called to demonstrate that his or legal advice was wrong. The nature of the legal advice given was common cause and whether or not it was sound can hardly be the subject of cross-examination as it could be determined objectively by the court based on the facts disclosed by the parties in their affidavits; 4. Subpoenaing of the Secretary of the BEC because she is in possession of all the relevant minutes of meetings and resolutions; and 5. Why it was not preferable for the protagonists to present their own witneses to support their versions on the disputed factual issues the court wished to be resolved. 75. The absence of reasons is significant because the court had made it clear early on in the proceedings that it wanted to understand (and presumably to be satisfied) of the need to call the number of people Pamo intended to. Nowhere in the record is it discernible that the court applied its mind to the very issues which at the outset it made clear needed the exercise of a judicial discretion one way or the other. 76. A consistent theme in the court’s impugned orders is lack of clarity and precision. The record demonstrates that both counsel for the parties, Mr Visser and Ms Da Silva, struggled to ascertain the court’s exact intention on 19 January 2024, particularly concerning the directive for the parties to submit ‘short summaries on oral evidence.’ 77. Without further clarification being provided by the court it is not readily ascertainable what is meant by ‘summaries’. Does it mean summaries of evidence of witnesses to be called or something else? The first possibility is in keeping with our new rules which require that a person may only be called as a witness on the basis of a witness statement. If something else was intended only a reasoned ruling on the issue could make that clear; and why? Another issue that exercised the court’s mind and found expression in an order is that the parties were invited to submit ‘questions’ to be asked. Again, the import of this is unclear. Were they to submit specific questions to be asked of witnesses or was it to be questions relative to the issues in dispute? 78. The lack of precision and clarity of the orders made by the judge at critical stages of the proceedings breached a fundamental principle underlying rule 67: the procedure is not intended to be a ‘roving inquiry with very loose and vague terms of reference’ and the evidence to be elicited should be clearly, concisely and unambiguously identified. Rule 67 referral should not be open-ended or overly wide. The procedure adopted by the presiding judge produced that result. 79. In addition, it is not clear whether what the court a quo had in mind was a referral in terms of rule 67(a) or a referral to trial under subrule (b). As was stated by the Lesotho Court of Appeal in _West Bank (a division of First National Bank Lesotho Ltd) v Hippo Transport Inc (Pty) Ltd_ :8 ‘It is always desirable when a matter is referred to oral evidence, for the court to give clear directions to the parties not only on the specific issue referred but the procedure to be followed in its adjudication. . . ’ 80. It is clear from the evolution of the proceedings before the presiding judge that the operative rationale for the referral to oral evidence is the one she gave on 19 January 2024, first in the absence of the CPBN’s lawyer and repeated in the presence of the latter: the need to establish whether or not calculation was possible from which the inference of mala fides would be drawn one way or the other. Curiously, the ruling of 30 April 2024 placed emphasis on the issue of _mala fides_ which the court had previously said would be inferred only if it was established that ‘calculation’ was possible. 81. Considered against the narrow focus of the inquiry contemplated by the presiding judge when she contemplated referring disputes of fact to oral evidence, the procedure had transformed into a roving open-ended inquiry inconsistent with what rule 67 is meant for. That was only possible because the court lost control of the process and invited Pamo to the proverbial dinner on an open menu determined by Pamo and not the court. 82. There is therefore merit in the CPBN’s complaint that the court abdicated its responsibility to define the contours of the referral, causing it prejudice. It is also unclear what dispute of fact the court wants resolved under the rule 67 procedure. The delineation of that dispute and the contours of a rule 67 procedure is the duty of the judge and not the parties. The court irregularly abdicated that responsibity to the parties. 83. Interference by this Court is necessary because the presiding judge’s conduct of the proceedings after 19 January 2024 has created uncertainty and confusion as to what exactly is to occur during the rule 67 procedure. 84. As has been said by the Constitutional Court of South Africa in _Eke v Parsons_ 9: ‘A court order must bring finalty to the dispute or part of it, to which it applies. The order must be framed in unambiguous terms and must be capable of being enforced, in the event of non-compliance… If an order is amgiguous, unenforceable, ineffective, inappropriate, or lacks the element of bringing finality to a matter or at least part of the case, it cannot be said that the court that granted it exercised its discretion properly. It is a fundamental principle of our law that a court order must be effective and enforceable, and it must be formulated in language that leaves no doubt as to what the order requires to be done. The order may not be framed in a manner that affords the person on whom it applies, the discretion to comply or disregard it’. 85. And I might add: ‘affords a party the discretion to itself decide what it may do or not do’. An order must not be of the nature that it requires subsequent clarifications as happened after 19 January 2024. 86. The procedure employed certainly does not accord with the principles enunciated in this judgment. 87. I have made it clear that a trier of fact in motion proceedings retains the discretion to refer a matter to oral evidence even without being prompted by the parties. At this stage of the process, it would be unprincipled for this Court to second-guess the court a quo’s view that it was not possible for it to decide the contempt application on the papers and that oral evidence is necessary. 88. As this Court said in _Konrad v Ndapanda: 10_ ‘[17]. . . that rule 67 is couched in discretionary terms and avails wide discretion for the court to: dismiss an application, or make any other order the court considers suitable, or direct that oral evidence be heard on specified issues, or refer the matter to trial with appropriate direction as to pleadings, definition of the issues or any other relevant matter. _Consequently, it would not be right or just in the circumstances for this court to direct the High Court as to how it may exercise its discretion in terms of rule 67._ That court should be given latitude to exercise its discretion informed, amongst other things, by the need to resolve the matter justly, expeditiously, efficiently and cost effectively (_my emphasis_).’ 89. Barring the irregularities established on the record, the court a quo should be allowed to continue to finalise the contempt procedure as it sees fit in accordance with the principles set out in this judgment. It is axiomatic that the parties must be afforded ample opportunity to make representations to the court on how it must proceed in terms of rule 67 in the light of the court’s determination that it is unable to resolve disputes of fact on the papers. _CPBN’s reprehensible conduct_ 90. CPBN in its founding affidavit made the allegation in relation to the order granted on 19 January 2024, that the judge deliberately recorded something contrary to the exchange between her and Ms Da Silva. That allegation is devoid of all truth and amounts to scandalising the judge. The order followed after Ms Da Silva had been given an opportunity to address the judge and fully appreciated that the judge wanted the CPBN to make ‘submissions’ if so advised. This conduct deserves not only special censure but also disentitles the CPBN to a costs order although successful. _Order_ 1. The court a quo’s order of 19 January 2024, and that of 05 February 2024 varying the order of 19 January 2024, and the further order of 12 February 2024 authorising the first respondent to subpoena witnesses, and the order of 26 March 2024, and the order of 30 April 2024 to the extent that it confirmed the previous orders, are reviewed and set aside. All processes that followed on the strength of these orders are invalid _ab initio_ and are hereby set aside. 2. The matter is remitted to the presiding judge to make determinations according to law, for referral of disputes of fact to oral evidence in terms of rule 67 of the High Court Rules. 3. The Registrar must place the matter on the presiding judge’s case management roll of 25 March 2025 at 15h30. 4. There is no order as to costs. **_____________________________** **DAMASEB DCJ** **____________________________** **ANGULA JA** **____________________________** **UEITELE AJA** APPEARANCES APPLICANTS: | TC Phatela (with him E Shifotoka) Instructed by Government Attorneys ---|--- | 1ST RESPONDENT: | R Heathcote (with him J Jacobs) Instructed by Koep & Partners 1 _Room Hire Co (Pty) Ltd v Jeppe Street_ _Mansions_ _(Pty) Ltd_ 1949 (3) SA 1155 (T). 2 See _Mbanderu Traditional Authority & another v Kahuure & others_ 2008 (1) NR 55 (SC). 3 Herbstein & Van Winsen, _The Civil Practice of the High Courts of South Africa,_ 5 ed, Vol. 2, at 463-464. 4 _Moropa & Others v Chemical Industries National Provident Fund _ 2021 (1) SA 499 (GJ) para 13. 5 _Metallurgical & Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd_ 1971 (2) SA 388 (W) at 396D–E. 6 _West Bank (a division of First National Bank Lesotho Ltd) v Hippo Transport Inc (Pty) Ltd_ (C of A (CIV) 09/2024) [[2024] LSCA 5](/akn/ls/judgment/lsca/2024/5) (3 May 2024). 7 _Konrad v Ndapanda_ 2019 (2) NR 301 (SC) at paras 13 and 16. 8 _West Bank (a division of First National Bank Lesotho Ltd) v Hippo Transport Inc (Pty) Ltd_ (C of A (CIV) 09/2024) [[2024] LSCA 5](/akn/ls/judgment/lsca/2024/5) (3 May 2024) para 47. 9 _Eke v Parsons_ 2016 (3) SA 37 (CC) paras 73-74. 10 _Konrad v Ndapanda_ 2019 (2) NR 301 (SC). #### __Related documents ▲ To the top >