Windhoek — The government is demanding N$2.8 million from the African Civil Aviation Agency for being over-charged on "agreed professional fees". The government alleges fraud through inflated charges and double invoicing for services rendered by the agency during a contract period that dates back to 2004.
African Civil Aviation Agency (ACAA) is a consulting firm with which the then Ministry of Works, Transport and Communication entered a five-year agreement "to provide certain services" on the setting up of the African Union's African Civil Aviation Authority (AFRO-CAA) with its headquarters in Namibia.
AFRO-CAA is meant to deal with aviation safety in Africa, which in those years had pitched Africa as of the unsafest skies in the world. The ACAA operated a Namibian registered firm whose address was care of legal firm M. B. De Klerk and Associates.
Now the ministry claims that the ACAA "submitted fraudulent or alternatively false invoices during the agreement or alternatively was negligent when submitting these invoices or accounts." The transport ministry wants ACAA to repay the sum of N$2 833 258.36 which is what government overpaid for the services - that include transport charges, airline tickets and professional management fees.
The ministry's catalogue of ACAA's double claims include the N$2 484.96 for transport from Frankfurt to Geneva for the period May 2006 that was paid twice in two successive months, N$1 892.24 plus an additional sum of N$2 513.06 for transport to South Africa which the ministry paid for in June/July but which ACAA claimed in an invoice dated August 16. The double payment lists continue with costs for tickets to Lagos, Nigeria, as well as interpretation costs.
The ministry also said although the review of the original contract in 2007 included the increase in professional fees, the original contract was "silent" on how much such fees can be increased. Hence the review meeting decided to increase the fee by 10 per annum per annum and backdated it to include the years 2005, 2006 and 2007. ACAA was then instructed to submit an invoice containing the outstanding amounts pertaining to the increases. When the invoice was submitted on January 18,2007 the ACAA included interest at the rate of 12% per annum amounting to N$64 789 which brought the total arrears to N$1 388 288.12, and which was promptly paid on January 23, 2007.
The ministry now claims that the ACAA was not entitled to claim the interest as it was not in arrears and no invoices were submitted for that amount. It claims that the ACAA was only entitled to an amount of N$647 892 and was therefore overpaid by N$740 396.12.
Government further alleges that it paid N$139 145 in professional fees for the period April 2007 to March 2008, "as a result of fraudulent misrepresentation by Harry Eggerschwiler who acted on behalf of ACAA", and who induced the ministry to extend the original contract by another five years and to increase the monthly professional fees from N$84 000 to N$139 154. Eggerschwiler is accused of producing a "memorandum" signed at the January 17 meeting where it was decided to increase the professional fees by 10 percent, to the then Chairperson of the Technical Committee, Philip Amunyela.
The ministry claims Eggerschwiler knew that the representations were false and that the memorandum was not part of the minutes of the January 17 meeting and contained statements that were neither discussed nor agreed on at that meeting.
"Mr Amunyela mistakenly signed the memorandum of agreement dated 06 June 2007," the court documents read. The ministry pleads that the mistake was reasonable and that the memorandum is accordingly void.
Judge Dave Smuts is on the bench while Nixon Marcus from the Government Attorney's Office represents the Ministry of Works and Transport, and James Diedericks appears for African Civil Aviation Agency.