Engen has instituted legal proceedings against the Ministry of Works and Transport in pursuit of at least N$23 million it claims it is owed for fuel and related supplies to now defunct Air Namibia.
Engen is an African-based energy group focused on the marketing of petroleum, lubricants and functional fluids, chemicals and retail convenience services, through an extensive network of service stations across 7 countries in sub-Saharan Africa and the Indian Ocean Islands.
The company claims that on or about the 18th of May 2018 as well as the 4th of February 2019 and at Windhoek they entered into a partly written partly oral agreement with the works ministry to provide a credit facility to Air Namibia (Pty) Ltd for the purchase of fuel and related products.
According to the agreement, the ministry as the shareholding minister in Air Namibia would be responsible for all the payments due and payable to Engen for such services meaning that the ministry would pay Engen periodically either directly or through Air Namibia.
Engen further highlights that the agreement affirms that the ministry would at all material times remain liable for any amount due and payable for the said goods and services.
“We duly complied with all its obligations in terms of the aforesaid agreement, more particularly in that we duly delivered the goods in question as agreed on different occasions and at the request and insistence of the ministry.
“The ministry however breached the terms of the agreement in that they failed to pay the full purchase price of the goods in question as agreed and effected short payment of N$23 340 996.96 to us. In these premises the ministry is still indebted to Engen in the amount of N$23 340 996.96 being the balance of the purchase price as agreed,” the claim seen by Business Express highlights adding that despite demand the ministry fails and/or neglects to pay the amount of N$23 340 996.96.
Subsequent to these claims, the ministry was supposed to submit its plea late last year and missed the deadline, Business Express understands. This has now prompted the ministry to bring a condonation application which it has claimed that its legal representative on record, Charmaine Taati Van der Smit had fallen ill at the time and thus could not file the plea.
In an affidavit disposed by the Executive Director for the Ministry of Works and Transport, Esther Kaapanda to this effect, she notes that on 7 November 2023 a case planning order was made by the Court in terms of which it was ordered, amongst other things, that a plea and/or counterclaim on behalf of the ministry be filed on or before 30 November 2023.
“I am informed further that Ms Van der Smit unfortunately fell ill on 29 November 2023 and consulted a doctor on 30 November 2023 (the day on which the plea was due) and was consequently booked off by the doctor for 30 November 2023 and 1 December 2023 and resumed work again on 4 December 2023. The defendant was, as a result, ipso facto barred from filing the plea which was not filed as ordered on 30 November 2023.
“Upon her return to the office on 4 December 2023, Ms Van der Smit addressed an email to the Plaintiff’s legal practitioner with the intent to engage in terms of Rule 32(9) and amicably resolve the issue before a condonation application is brought by Defendant. Unfortunately, there has been no response to the aforesaid email to date and the parties were not able to engage further and possibly agree on new dates on which further pleadings can be filed,” notes Kaapanda in the affidavit.
She goes on to say that in addition, the application could not be brought sooner as Ms Van der Smit also went on annual leave in December and resumed work only on 22 January 2024, this application is thus filed on 24 January 2024.
“I am advised that the rules of this court provide that non-compliance with a court order can only be condoned by way of a condonation application, and that is the purpose of this application.
“Defendant has prospects of success in the matter and disputes the alleged agreement which has given rise to the claim for over N$20 million as instituted by Plaintiff which Plaintiff bears the onus to prove. Defendant intends to fully canvas their defence in their plea should the court grant Defendant leave to file their plea,” further notes Kaapanda.
The ministry was scheduled to submit its condonation application last week which would seek an order condoning it’s non-compliance with the court order dated 7 November 2023; uplifting the automatic bar on the ministry to file their plea on account of the aforesaid non-compliance with the court order and the court granting the ministry leave to file their plea.