The National Fishing Corporation of Namibia is fighting to rid itself of several agreements that were concluded by some of the key figures in the ongoing multi-million-dollar Fishrot corruption case.
The company claims, in High Court documents, that various agreements concluded by then Fishcor board chairperson James Hatuikulipi, former fisheries minister Benhardt Esau, former Fishcor CEO Mike Nghipunya and Adrian Louw, who represented both Africa Selection Fishing Namibia (ASF) and Seaflower Pelagic Processing, were not made in good faith.
Furthermore, Fishcor claims they were entered into in a corrupt and fraudulent manner.
To strengthen its case, Fishcor is fighting to have Fishrot's self-proclaimed "paymaster" and lawyer Maren de Klerk testify via video link. This application has since been dismissed, but Fishcor asked for leave from the High Court to petition the Supreme Court.
That ruling will be delivered on 26 January.
In its fights, Fishcor wants the co-operation agreement, which was concluded between itself and the fisheries ministry by Esau and Hatuikulipi on 18 November 2015, to be declared null and void. This agreement indicates the ministry will make sufficient fishing quotas available upon application by Fishcor and its subsidiaries.
The second agreement that Fishcor wants to cease is the shareholders' agreement, concluded on 30 January 2016. This agreement was between ASF and Fishcor. The representatives were Nghipunya and Louw.
This agreement was done so that Fishcor could allegedly fulfil its mandate of carrying out various activities and projects.
In light of this agreement, Seaflower was established, where Fishcor attained 40% shareholding and the remainder belonged to ASF.
According to this agreement, Fishcor would ensure an allocation of a minimum 50 000 tonnes per annum over a period of 15 years to Seaflower.
The third agreement, the "quota usage agreement", was concluded on 30 January 2017 by Nghipunya and Louw on behalf of Fishcor and Seaflower.
Fishcor claims that in light of the High Court's judgement of 27 August 2020, all the agreements must be declared null and void.
In that judgement, the court concluded that the co-operation agreement did not oblige the government "to actually provide 50 000 tonnes of horse mackerel to Fishcor", and that such undertaking to provide the said tonnes per year over 15 years would only be possible under a "corrupt environment".
Thus, Fishcor terminated the cooperation agreement on 21 September 2020.
On 25 September 2020, Fishcor terminated the shareholder's agreement.
De Klerk's evidence
According to De Klerk's affidavit, he admits to having "unwittingly" committed various crimes connected to the Fishrot saga, which scheme involved himself, then attorney general Sacky Shanghala, Louw, Hatuikulipi and Louw's financial advisor, Johannes Breed.
He said apart from Breed, the group met on 30 December 2016 to discuss a venture that has the "capacity to make them a lot of money", allegedly according to Shanghala.
"He (Shanghala) explained that in his capacity to vet all government agreements, he was in a position to approve a proposed joint venture between Fishcor and an entity to be created in Namibia," stated De Klerk.
This, he said, led to the creation of Seaflower.
According to De Klerk, Shanghala informed the group that there would be an amendment to the fishing legislation, which would result in the creation of a land-based fish-processing plant. In addition, those amendments would open the door for a joint venture between Fishcor and local and Angolan investors in the fishing sector.
Shanghala allegedly introduced Louw as one of the biggest players in the sector, and the latter already had discussions with Esau. Louw, as a result of the amendments, would enjoy the preferential right to all and any business opportunities.
"Shanghala explained to me that he was in effect under an 'instruction' from minister Esau to ensure that the agreements were to be concluded with Louw," said De Klerk.
To give effect to the scheme, De Klerk claims he intimately became involved by advising and giving input to various agreements that are now under Fishcor's microscope.
He said other lawyers involved in the drafting of the agreements were Fishcor's lawyers Ellis Shilengunwa Inc, and in particular Peter Johns.
"Although my involvement stemmed from carrying out instructions as a legal practitioner, most of what was discussed at the meeting on 30 December 2016 and subsequently was largely implemented as part of the corrupt scheme," noted De Klerk.
He said the whole scheme could not have been possible without Shanghala and Esau facilitating from the government's side, Hatuikulipi and Nghipunya at Fishcor, and Louw and Breed at ASF and Seaflower.
De Klerk said he is committed to working with law enforcement agencies in Namibia, despite not being offered any protection since having provided them with solid evidence. He said by law, he qualifies as an informant, who requires protection.
In the Fishcor case, he said he is willing to only give oral evidence via video link as his life is in danger should he return to Namibia without any protection guarantee.
"I live in constant fear for my physical safety and life, and accordingly do not hold a permanent residential address, and frequently rotate between residences," said De Klerk.
For his safety, he was moved out of South Africa by the Platform to Protect Whistleblowers in Africa in February 2021.
The High Court issued an order for his arrest on 25 March 2022.
Seaflower, ASF stance
In court documents, the two companies claim that there was no factual or lawful basis upon which Fischor cancelled their shareholder's agreement in September 2020. Thus, Fishcor acted unlawfully.
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They further argue that the cancellation of the shareholder's agreement does not in any way terminate the interest that Fishcor and ASF have in Seaflower.
Furthermore, Fishcor has breached the terms of their shareholder's agreement. In their counterclaim, the companies want the High Court to declare Fishcor as a defaulting shareholder as per the shareholder's agreement, and order it to sell its 40% shareholding in Seaflower to ASF.
ASF has allegedly offered to buy the shares for N$146.3 million.
Louw has since rubbished De Klerk's allegation of a criminal scheme, stating that the agreements were concluded in line with previously-established governmental objectives.
"Although De Klerk's testimony is said to be crucial to the plaintiff, he has no actual knowledge of anything, and cannot be allowed to speculate over Zoom in an attempt to demonstrate his relevance," said Louw.
He said if De Klerk really wanted to cooperate with the Namibian authorities, he would have handed himself over, pursuant to the warrant of arrest that was issued.
He further said there is no evidence that supports De Klerk's allegations that his life is in danger should he return to Namibia.
-mamakali@nepc.com.na
