NamPost sues ex-CEO

A FORMER head of NamPost, Hermanus Kasper, cost the parastatal millions of dollars when he cancelled a service delivery contract with the City of Windhoek – and then promptly emerged as a central figure in another company that tendered to take over the same sort of service, the postal company claims in a case it has instituted in the High Court.

NamPost claims that a decision Kasper took in March 2003, will cost Kasper more than N$2 million if the parastatal has its way. That is the amount that NamPost is claiming from Kasper, who was its Chief Executive Officer from November 1 2002 until the end of April 2004.Kasper was appointed as CEO for a five-year period, but resigned after less than a year and a half in the job.”Personal reasons” were the only grounds for his resignation that were cited by NamPost at the time that he took his leave of the company.Now NamPost has instituted legal action against Kasper, claiming that he should pay the State-owned company N$2 056 578,59 because of the role he played in a decision to cancel an agreement NamPost had with the City of Windhoek.In terms of that agreement, people were able to pay their Windhoek municipal accounts at NamPost post offices.In return for that service, NamPost earned N$2 for every transaction of up to N$20 000, while it earned N$1 for every transaction of more than N$20 000 that it handled for the City’s benefit.That agreement came into operation at the end of July 2000, and was set to run for five years.Then, in early March 2003, Kasper wrote a letter to the then CEO of the City, Martin Shipanga, stating that he was “pleased to inform” Shipanga that the NamPost board had “carefully considered” the status of the co-operation between NamPost and the City, and had taken note of a failure on the City’s part to to renegotiate the agreement in good faith.Kasper added that NamPost was giving the City seven days notice to address the matter, and that the revenue collection services it was carrying out for the City would otherwise be terminated if the City did not comply with this.Shipanga replied in a letter dated March 7.This letter, like Kasper’s, has been filed with the High Court as part of NamPost’s case against Kasper.In the letter, Shipanga informed Kasper that the City accepted NamPost’s cancellation of their agreement, with effect from midnight on March 11 2003.’SECRET PROFIT’A tender process that followed on this step, is what led to the court claim that Kasper now faces.In its claim, NamPost alleges that as CEO, Kasper’s duties to the company included serving it honestly and in good faith and not working against it’s interests, not placing himself in a position where his interests conflicted with those of NamPost, the duty not to seek to make “a secret profit” at the expense of NamPost, and a duty not to use his position in order to further his own interests in fraud of NamPost.Kasper acted in breach of those duties when he addressed the March 4 2003 letter to Shipanga, NamPost says.That letter was not authorised by the NamPost board, it was addressed to the City without any legal or factual cause to invoke the cancellation clause of the agreement between NamPost and the City, and it was against NamPost’s interest to terminate the agreement, the company is claiming.In addition to that, NamPost also claims, Kasper caused the cancellation of the agreement with an improper purpose: that is, in order for another entity in which he had an interest to subsequently tender to take over some of the services that had been covered by the cancelled agreement.’OUT OF ORDER’ Only two months after the cancellation of the agreement, and while Kasper was still NamPost CEO, a company of which he was a director, Vending JV, emerged as one of the tenderers to provide electricity pre-payment vending services to the City, NamPost is claiming.In its tender proposal, Vending JV introduced Kasper as its prospective “point of sale co-ordinator” for the job it was submitting a tender for.The cancelled agreement had also covered the sale of pre-paid electricity by NamPost on the City’s behalf, NamPost is claiming.According to a legal opinion that lawyer Hartmut Ruppel provided to NamPost a year later – this, too, forms part of the documents filed with the High Court – “there is little doubt that Mr Kasper had placed himself squarely in a conflict of interest situation”.N$1,3 million lost NamPost claims that this caused the company to lose a total of N$2 056 578,59 in revenue that it says it could have expected to still receive over the remaining years of the contract that was cancelled as a result of Kasper’s intervention.Of that amount, some N$1,3 million would have been income for the sale of pre-paid electricity that NamPost claims to have lost due to the cancellation of the agreement.Kasper is defending the case.He has not yet filed a reply to the claim against him, but his lawyers have, as a first step in his defence, filed a list of questions that they wanted NamPost to answer to give more particulars on its claims.It was an application to compel NamPost to reply to that request for further particulars that led to the case appearing on the High Court roll for a first time on Monday.Hannalie Duvenhage, representing Kasper, however told Acting Judge Louis Botes that NamPost has in the meantime supplied the requested particulars, and asked that the case be removed from the roll again.NamPost was ordered to pay the costs of that application, though.That is the amount that NamPost is claiming from Kasper, who was its Chief Executive Officer from November 1 2002 until the end of April 2004.Kasper was appointed as CEO for a five-year period, but resigned after less than a year and a half in the job.”Personal reasons” were the only grounds for his resignation that were cited by NamPost at the time that he took his leave of the company.Now NamPost has instituted legal action against Kasper, claiming that he should pay the State-owned company N$2 056 578,59 because of the role he played in a decision to cancel an agreement NamPost had with the City of Windhoek.In terms of that agreement, people were able to pay their Windhoek municipal accounts at NamPost post offices.In return for that service, NamPost earned N$2 for every transaction of up to N$20 000, while it earned N$1 for every transaction of more than N$20 000 that it handled for the City’s benefit.That agreement came into operation at the end of July 2000, and was set to run for five years.Then, in early March 2003, Kasper wrote a letter to the then CEO of the City, Martin Shipanga, stating that he was “pleased to inform” Shipanga that the NamPost board had “carefully considered” the status of the co-operation between NamPost and the City, and had taken note of a failure on the City’s part to to renegotiate the agreement in good faith.Kasper added that NamPost was giving the City seven days notice to address the matter, and that the revenue collection services it was carrying out for the City would otherwise be terminated if the City did not comply with this.Shipanga replied in a letter dated March 7.This letter, like Kasper’s, has been filed with the High Court as part of NamPost’s case against Kasper.In the letter, Shipanga informed Kasper that the City accepted NamPost’s cancellation of their agreement, with effect from midnight on March 11 2003.’SECRET PROFIT’ A tender process that followed on this step, is what led to the court claim that Kasper now faces.In its claim, NamPost alleges that as CEO, Kasper’s duties to the company included serving it honestly and in good faith and not working against it’s interests, not placing himself in a position where his interests conflicted with those of NamPost, the duty not to seek to make “a secret profit” at the expense of NamPost, and a duty not to use his position in order to further his own interests in fraud of NamPost.Kasper acted in breach of those duties when he addressed the March 4 2003 letter to Shipanga, NamPost says.That letter was not authorised by the NamPost board, it was addressed to the City without any legal or factual cause to invoke the cancellation clause of the agreement between NamPost and the City, and it was against NamPost’s interest to terminate the agreement, the company is claiming.In addition to that, NamPost also claims, Kasper caused the cancellation of the agreement with an improper purpose: that is, in order for another entity in which he had an interest to subsequently tender to take over some of the services that had been covered by the cancelled agreement.’OUT OF ORDER’ Only two months after the cancellation of the agreement, and while Kasper was still NamPost CEO, a company of which he was a director, Vending JV, emerged as one of the tenderers to provide electricity pre-payment vending services to the City, NamPost is claiming.In its tender proposal, Vending JV introduced Kasper as its prospective “point of sale co-ordinator” for the job it was submitting a tender for.The cancelled agreement had also covered the sale of pre-paid electricity by NamPost on the City’s behalf, NamPost is claiming.According to a legal opinion that lawyer Hartmut Ruppel provided to NamPost a year later – this, too, forms part of the documents filed with the High Court – “there is little doubt that Mr Kasper had placed himself squarely in a conflict of interest situation”.N$1,3 million lost NamPost claims that this caused the company to lose a total of N$2 056 578,59 in revenue that it says it could have expected to still receive over the remaining years of the contract that was cancelled as a result of Kasper’s intervention.Of that amount, some N$1,3 million would have been income for the sale of pre-paid electricity that NamPost claims to have lost due to the cancellation of the agreement.Kasper is defending the case.He has not yet filed a reply to the claim against him, but his lawyers have, as a first step in his defence, filed a list of questions that they wanted NamPost to answer to give more particulars on its claims.It was an application to compel NamPost to reply to that request for further particulars that led to the case appearing on the High Court roll for a first time on Monday.Hannalie Duvenhage, representing Kasper, however told Acting Judge Louis Botes that NamPost has in the meantime supplied the requested particulars, and asked that the case be removed from the roll again.NamPost was ordered to pay the costs of that application, though.