Namibia: Govt Forks Out N$5,3m On UK Lawyers

The Namibian government has incurred legal fees of N$5,3 million in the United Kingdom, linked to Air Namibia's failure to hand over two leased aircraft in the condition that they were handed to them.

Documents in possession of The Namibian show that justice minister Sacky Shanghala hired one Namibian and two European lawyers to provide legal opinion to the government on the lease and guarantee agreements between Air Namibia and BCI Aircraft Leasing Inc.

BCI Aircraft Leasing provides financial solutions to help operators of commercial aircraft throughout the world to gain a lift for their operations.

The company's headquarters are in Chicago, Illinois, and it is owned by American businessman Brian Hollnagel.

Air Namibia had originally entered an agreement with Gie Lara in 2005 for the lease of two A340-300 aircraft for a period of seven years, costing the airline N$14 million per month for the two aircraft.

However, Gie Lara sold the same aircraft to BCI in 2008, with all the terms of the agreement it had with Air Namibia unchanged.

BCI and Air Namibia's disagreement revolves around technicalities about the delivery and return of the aircraft.

Documents reveal that Air Namibia failed to return the aircraft in accordance with the conditions and on the dates specified in the lease agreement.

Shanghala appointed the lawyers in his former capacity as the country's attorney general (AG) in June 2015.

The lawyers are Thomas Raphael, Monica Feria-Tinta and Anna Uukelo, a former schoolmate of Shanghala.

Uukelo was the same lawyer used before the UK courts in the controversial genocide matter in 2016.

Documents in possession of The Namibian show that the executive director in the Ministry of Justice, Issaskar Ndjoze, consulted the executive director in the Ministry of Finance Ericah Shafudah about the opinion sought and the bill to be paid by the government through treasury on 30 July 2015.

Ndjoze also processed the invoices, and sent them to the Ministry of Finance.

Raphael charged £48 780, Feria-Tinta £48 780 and Anna Uukelo £156 600, which came to a total of N$5 362 776 at the time of processing in June 2015.

This means that out of the N$5,3 million which was invoiced to the government, about N$3 304 260 was paid to Uukelo alone.

According to Ndjoze's letter to Shafudah dated 30 July 2015, the attorney general's office had provided various opinions as well as reaching out to local lawyers, but the matter was still left hanging.

"The lease agreements and guarantee agreement are governed by English law, and all parties agreed to the exclusive jurisdiction of the English courts to settle any dispute that may occur between Air Namibia and BCI, and between the government and BCI.

"When Air Namibia allegedly failed to comply with its obligation in terms of the lease agreements, BCI made demands/calls against the guarantee agreement to the Ministry of Finance.

"The Office of the Attorney General provided various opinions on the matter, which still left the matter unresolved between the government and BCI, and in terms of the guarantee agreements.

"The attorney general thereafter sought legal opinions from Mr JJ Badenhorst, Ellis Shilengundwa Inc, all Namibian lawyers, who advised inconclusively, as they are not experts in English law.

"Thereafter, opinion was sought from English counsel, Mr Thomas, Ms Feria-Tinta and Ms Uukelo, on issues pertaining to, amongst others, the ability of the guarantor, possibility of settlement, as well as the status of the calls and demand.

"... Therefore, we herewith request treasury to cover the payment of these fees from contingency funds,"Ndjoze wrote.

A breakdown of the N$5,3 million invoices in possession of The Namibian and which were handed over to the government on 1 June 2015 by the foreign-based lawyers shows that they are claiming money for spurious expenses like sending, receiving and replying to emails, phone calls and receiving of documents.

Other legal fees demanded are based mostly on administrative work such as reading and studying documents, requesting and sending CVs, clerical preparations of the arrival of Shanghala, and phone discussions with the Air Namibia team.

For such legal opinions, the lawyers charged fees ranging from £2 500 to £5 500.

The lawyers also claim to have worked up to 20 hours a day, according to the documents.

Finance executive director Shafudah confirmed on Monday last week that treasury had received notice from Ndjoze to settle the N$3,5 million invoices.

"Yes, the payments were effected as contained in documents at your disposal. We have paid out N$5,3 million for the three lawyers together," she told The Namibian.

This has raised concern among prominent local lawyers and academics, who have argued that the fees and working hours are highly exaggerated and ridiculous.

Prominent political analyst and academic Ndumba Kamwanyah said the former attorney general should have learned from the genocide payment scandals that caused public anger.

The local legal experts argued that no lawyer can work for over 70 hours in a period of four days.

"After the whole debacle of the genocide negotiation scandal, and all the public anger the issue generated, one would think that the former AG would be careful not to repeat his previous blunders. But here we go again, a huge bill for work that frankly can be done by local lawyers,"Kamwanyah stressed.

A prominent lawyer who refused to be mentioned said the billing is strange and questionable.

"I've checked now. Like Uukelo's other invoices, it appears that she acted as an attorney/solicitor. Hence, she liaised between the AG and the counsel at Essex Chambers.

There are some strange billings from her, like freeing up the week, which are questionable. Unless of course she charged on a daily retainer fee.

"Also, whatever work she did, it does not make sense that she charged for various consecutive days between 20 and 23 hours. When did she sleep?

"Furthermore, the briefed counsel from Essex Chambers jointly charged about £97 000, whilst she charged nearly double that amount, around £156 600 the lawyer quizzed.

In Namibia, the maximum allowable rate for civil matters such as the genocide issue is N$2 500 per hour, compared to the £600 (N$10 400) charged by the foreign-based lawyers.

Since inception, Air Namibia has been making losses, and survives on perennial bailouts through taxpayers' money.

The airline has between 2014 and 2016 received N$2,4 billion from treasury, and received further bailouts of over N$2 billion in the last three years.

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