Judge Teek, partners lose out in fish spat

A GROUP of shareholders in a fishing firm, including one of the country’s most senior judges, who tried to get the High Court to boot a partner from their joint business, were yesterday ruled not to have cared whether they placed distortions, misstatements and misrepresentations before the court in an effort to win their case.

Because of the involvement of Supreme Court Judge of Appeal Pio Teek in the case that flowed from a falling-out among the partners in Old Man Fishing Close Corporation, a Judge from the Johannesburg High Court in South Africa, Judge Gidfonia M. Makhanya, was appointed as an Acting Judge of Namibia’s High Court to deal with the case. His judgement was delivered in the High Court in Windhoek yesterday.The result of Judge Makhanya’s ruling was that Old Man Fishing (cc) partners Axali Doeseb, Gottfried Rheis, August Bikeur, Justine Harases, Erika Uiras, Hendrick Namaseb, and Pia Mbemurukira Kazenango, a minor who was represented by her father, Judge Teek, failed in their attempt to oust a 44 per cent partner in Old Man Fishing cc, Benjamin Kheibeb, from the corporation.Because of the findings that he made in his judgement the Judge ordered Doeseb and his six co-applicants to pay Kheibeb’s legal costs on a higher than usual, “attorney and client” scale.These findings were mainly that Doeseb and his fellow applicants in the case had not disclosed some material facts and had misstated or misrepresented other facts when they went to court in secret in July last year to get a first, interim ruling to remove Old Man Fishing CC from Kheibeb’s control.Kheibeb was in turn ordered to pay the seven applicants’ legal costs – but not on an attorney and client scale – for a counter-application in which he had asked the court to order that Doeseb, Bikeur, Kazenango and Namaseb were no longer partners in Old Man Fishing because they had never paid for their membership in the close corporation.The Judge rejected Kheibeb’s counter-application upon finding that the opposing parties in the case were not in agreement that those four applicants had never paid for their members’ interest in Old Man Fishing cc.From affidavits that were filed in the case, it emerged that there was a dispute over the circumstances in which Judge of Appeal Teek became involved in the fishing corporation in the first place.Kheibeb had initially been the sole member in Old Man Fishing cc.He in effect claimed that the Judge had tried to hide his involvement in the fishing corporation behind his daughter’s name.Kheibeb alleged in a sworn statement that he offered a part membership in Old Man Fishing to Judge Teek, and that the Judge told him that because of the nature of the office that he held his membership would have to be placed under the name of his teenaged daughter, Kazenango, with the Judge then to act on her behalf as her guardian.The Judge of Appeal disputed this version, and termed parts of it as not only untrue, but “absurd” and “ridiculous”.In an affidavit of his own, he related that Kheibeb approached him to offer him a part membership in Old Man Fishing because when he still practised as an advocate he sometimes defended People’s Liberation Army of Namibia (Plan) members in court without payment, and had thus made a contribution to the independence of Namibia.Judge Teek claimed that he advised Kheibeb to instead give the offered membership in the close corporation to his daughter.Doeseb and the other applicants wanted to have Old Man Fishing cc removed from the control of Kheibeb after they accused him of irregular and improper conduct of the corporation’s affairs.This included Kheibeb allegedly buying vehicles with Old Man Fishing cc money without his partners’ knowledge, and him allegedly depositing cheques in excess of N$400 000 into his own bank account while these were meant for the corporation.Doeseb and the other six applicants approached the High Court on an ex parte basis – that is, without Kheibeb having been informed of the court action or being represented before the court – in July last year, and managed to get an interim order by which Old Man Fishing’s financial records, assets and bank accounts were removed from Kheibeb’s control.When parties approach a court on such a basis, they have a duty to disclose all relevant facts to the court, Judge Makhanya reminded in his judgement.In the case between Doeseb and company, and Kheibeb, there had been several such failures by Doeseb and his partners to fully disclose facts or disputes to the court, the Judge ruled.One of these was an omission to inform the court that the purchase of one of the vehicles that they claimed Kheibeb had bought without their knowledge and authority, had by their own admission been ratified by them, Judge Makhanya noted.”This glaring omission suggests to this court that the applicants intended and were on a deliberate mission when launching the ex parte application, to put (Kheibeb) in as bad a light as possible before court despite the true facts which were well-known to them attendant to this issue.”They had also claimed that Kheibeb had improperly deposited cheques intended for Old Man Fishing into his own bank account.What they failed to disclose to the court, Judge Makhanya stated in the judgement, was that at that stage there had been a problem with the corporation’s account and that they knew of it, and also that there was a document that was claimed to be a resolution taken by Old Man Fishing’s members which authorised Kheibeb to pay money received for the corporation into his account.Judge Makhanya remarked:”In the premises, it appears to me that the applicants, well aware about all these unresolved issues, disputes and contests within the close corporation, decided to contrive what appeared to them to be a grand plan and approached this court ex parte in order to oust (Kheibeb) from (Old Man Fishing cc) or to drastically limit his members’ interest or his influence.Uncaring whether the facts put before court were distortions, misstatements or misrepresentations or not.”In effect, his ruling indicated, they had tried to mislead the court, and for that reason he set aside the initial order that had been granted in their favour.Rudi Cohrssen represented Doeseb and his partners during the hearing of arguments by Judge Makhanya in mid-January.Raymond Heathcote represented Kheibeb.His judgement was delivered in the High Court in Windhoek yesterday.The result of Judge Makhanya’s ruling was that Old Man Fishing (cc) partners Axali Doeseb, Gottfried Rheis, August Bikeur, Justine Harases, Erika Uiras, Hendrick Namaseb, and Pia Mbemurukira Kazenango, a minor who was represented by her father, Judge Teek, failed in their attempt to oust a 44 per cent partner in Old Man Fishing cc, Benjamin Kheibeb, from the corporation.Because of the findings that he made in his judgement the Judge ordered Doeseb and his six co-applicants to pay Kheibeb’s legal costs on a higher than usual, “attorney and client” scale.These findings were mainly that Doeseb and his fellow applicants in the case had not disclosed some material facts and had misstated or misrepresented other facts when they went to court in secret in July last year to get a first, interim ruling to remove Old Man Fishing CC from Kheibeb’s control.Kheibeb was in turn ordered to pay the seven applicants’ legal costs – but not on an attorney and client scale – for a counter-application in which he had asked the court to order that Doeseb, Bikeur, Kazenango and Namaseb were no longer partners in Old Man Fishing because they had never paid for their membership in the close corporation.The Judge rejected Kheibeb’s counter-application upon finding that the opposing parties in the case were not in agreement that those four applicants had never paid for their members’ interest in Old Man Fishing cc.From affidavits that were filed in the case, it emerged that there was a dispute over the circumstances in which Judge of Appeal Teek became involved in the fishing corporation in the first place.Kheibeb had initially been the sole member in Old Man Fishing cc.He in effect claimed that the Judge had tried to hide his involvement in the fishing corporation behind his daughter’s name.Kheibeb alleged in a sworn statement that he offered a part membership in Old Man Fishing to Judge Teek, and that the Judge told him that because of the nature of the office that he held his membership would have to be placed under the name of his teenaged daughter, Kazenango, with the Judge then to act on her behalf as her guardian.The Judge of Appeal disputed this version, and termed parts of it as not only untrue, but “absurd” and “ridiculous”.In an affidavit of his own, he related that Kheibeb approached him to offer him a part membership in Old Man Fishing because when he still practised as an advocate he sometimes defended People’s Liberation Army of Namibia (Plan) members in court without payment, and had thus made a contribution to the independence of Namibia.Judge Teek claimed that he advised Kheibeb to instead give the offered membership in the close corporation to his daughter.Doeseb and the other applicants wanted to have Old Man Fishing cc removed from the control of Kheibeb after they accused him of irregular and improper conduct of the corporation’s affairs.This included Kheibeb allegedly buying vehicles with Old Man Fishing cc money without his partners’ knowledge, and him allegedly depositing cheques in excess of N$400 000 into his own bank account while these were meant for the corporation.Doeseb and the other six applicants approached the High Court on an ex parte basis – that is, without Kheibeb having been informed of the court action or being represented before the court – in July last year, and managed to get an interim order by which Old Man Fishing’s financial records, assets and bank accounts were removed from Kheibeb’s control.When parties approach a court on such a basis, they have a duty to disclose all relevant facts to the court, Judge Makhanya reminded in his judgement.In the case between Doeseb and company, and Kheibeb, there had been several such failures by Doeseb and his partners to fully disclose facts or disputes to the court, the Judge ruled.One of these was an omission to inform the court that the purchase of one of the vehicles that they claimed Kheibeb had bought without their knowledge and authority, had by their own admission been ratified by them, Judge Makhanya noted.”This glaring omission suggests to this court that the applicants intended and were on a deliberate mission when launching the ex parte application, to put (Kheibeb) in as bad a light as possible before court despite the true facts which were well-known to them attendant to this issue.”They had also claimed that Kheibeb had improperly deposited cheques intended for Old Man Fishing into his own bank account.What they failed to disclose to the court, Judge Makhanya stated in the judgement, was that at that stage there had been a problem with the corporation’s account and that they knew of it, and also that there was a document that was claimed to be a resolution taken by Old Man Fishing’s members which authorised Kheibeb to pay money received for the corporation into his account.Judge Makhanya remarked:”In the premises, it appears to me that the applicants, well aware about all these unresolved issues, disputes and contests within the close corporation, decided to contrive what appeared to them to be a grand plan and approached this court ex parte in order to oust (Kheibeb) from (Old Man Fishing cc) or to drastically limit his members’ interest or his influence.Uncaring whether the facts put before court were distortions, misstatements or misrepresentations or not.”In effect, his ruling indicated, they had tried to mislead the court, and for that reason he set aside the initial order that had been granted in their favour.Rudi Cohrssen represented Doeseb and his partners during the hearing of arguments by Judge Makhanya in mid-January.Raymond Heathcote represented Kheibeb.