Teek, partners lose last leg of fish fight

AN attempt to harness the powers of the courts to force the managing member of one of Namibia’s hake-fishing quota holders out of the corporation that he founded, finally failed in the Supreme Court this week.

The effect of the judgement handed down in the Supreme Court on Wednesday is that Benjamin Kheibeb, a founding member of Old Man Fishing CC, will not be forced by the courts to sell his interest in the corporation to seven partners in Old Man Fishing with whom he has been embroiled in a bitter business dispute for the past three years. Wednesday’s decision means that both the Supreme Court and the High Court have now dismissed attempts by Kheibeb’s partners to boot him.South African judges who had been appointed as Acting Judges in Namibia in order to hear the case – due to the involvement of former Supreme Court Judge of Appeal Pio Teek in Old Man Fishing – handed down both decisions.This week’s judgement was written by Acting Judge of Appeal Suretta Snyders, who is a Judge of the Transvaal and Witwatersrand division of the High Court of South Africa.Acting Appeal Judges Frans Kgomo, who is the Judge President of the Northern Cape High Court in South Africa, and Mogoeng Mogoeng, who is the Judge President of the Bophuthatswana High Court, agreed with Judge Snyders’s judgement.Teek was involved in the case as the guardian of his minor daughter, Pia Kazenango, who has an eight per cent share in Old Man Fishing.Kheibeb, the original founder of Old Man Fishing, had originally offered that “membership interest” to Teek, who suggested that it should instead be given to his daughter, due to the nature of the judicial position that he held at the time.In his capacity as his daughter’s guardian, Teek nevertheless became involved in the firm’s affairs, including the court case in which Kheibeb’s partners tried to wrest control of the firm from him.Old Man Fishing CC holds a seven-year hake concession that runs to 2007, through its membership in the Omaru Fishing consortium.This consortium has been awarded an annual hake quota of just over 3 000 tons, which it contributed to an ill-fated fishing partnership, Blue Ocean Products, which set up a multi-million dollar fish processing plant at Walvis Bay but was declared bankrupt in late May last year.The Old Man Fishing CC members who took Kheibeb to court in an effort to convince the court to order him not only to surrender all the property of the corporation that he had in his possession to them, but also to order him to sell his 44 per cent member’s interest to them, were Kazenango, Axali Doeseb, Gottfried Rheis, August Bikeur, Justine Harases, Erika Uiras, and Hendrick Namaseb.They claimed that Kheibeb, who had been appointed as the managing partner of Old Man Fishing, was not acting in the firm’s or the other members’ interests through the way that he was running Old Man Fishing, that it was not “reasonably practicable” for the other members to carry on the business of the corporation with him, and that in these circumstances it was “just and equitable” that he should stop being a member of the corporation.Neither Acting Judge Gidfonia Makhanya in the High Court, nor the three Acting Appeal Judges who heard the case in the Supreme Court, agreed with their claims.Among the claims that they had made was that Kheibeb had bought two vehicles for Old Man Fishing CC without getting proper authority form the other partners, and that he had paid two cheques totalling some N$404 000 into his own personal bank account instead of the firm’s, thus committing theft and fraud.Acting Appeal Judge Snyders and her colleagues on the Supreme Court bench were not convinced by these claims.With Kheibeb having explained in an affidavit that his partners had ratified the purchase of the vehicles, and that he was using his own bank account with his partners’ full knowledge while he also spent that money in the interest of Old Man Fishing, the Acting Appeal Judge concluded that it had not been shown on the documentary evidence before the court that Kheibeb had misappropriated the cheques or acted fraudulently.She was also not convinced that the other members had proven their claim that Kheibeb had furthermore stolen an investment of some N$68 000 that he had withdrawn from a company where Old Man Fishing had placed it.Kheibeb may have been let off the hook on that score, but he did not emerge unscathed from the judgement – especially as far as his competence as the managing partner in the firm is concerned.The facts that were before court – and as also admitted by Kheibeb – “are such that one may justifiably have serious doubts as to the efficacy, competency and propriety with which the business of (Old Man Fishing) is conducted, but that is not sufficient for finding in favour of the appellants,” Acting Appeal Judge Snyders stated in that respect.She added: “Furthermore, it is likely that the long and ongoing disputes between the members of (Old Man Fishing) are prejudicial to the business of (Old Man Fishing).However the appellants have not put sufficient facts before the Court to show that it is just and equitable that (Kheibeb) should cease to be a member of (Old Man Fishing).”While they lost that part of their appeal, Kheibeb’s partners won another part.In the High Court, a punitive costs order was awarded against them after Acting Judge Makhanya decided that they had been guilty of making misstatements and misrepresentations to the court and of failing to disclose some material facts to the court.That finding was not justified, Acting Appeal Judge Snyders found.She decided to instead award costs on a lower, ordinary scale to Kheibeb.Theo Frank, SC, argued the appeal on behalf of Doeseb and the other members in the Supreme Court.Kheibeb’s case was argued by Raymond Heathcote.Wednesday’s decision means that both the Supreme Court and the High Court have now dismissed attempts by Kheibeb’s partners to boot him.South African judges who had been appointed as Acting Judges in Namibia in order to hear the case – due to the involvement of former Supreme Court Judge of Appeal Pio Teek in Old Man Fishing – handed down both decisions.This week’s judgement was written by Acting Judge of Appeal Suretta Snyders, who is a Judge of the Transvaal and Witwatersrand division of the High Court of South Africa. Acting Appeal Judges Frans Kgomo, who is the Judge President of the Northern Cape High Court in South Africa, and Mogoeng Mogoeng, who is the Judge President of the Bophuthatswana High Court, agreed with Judge Snyders’s judgement.Teek was involved in the case as the guardian of his minor daughter, Pia Kazenango, who has an eight per cent share in Old Man Fishing.Kheibeb, the original founder of Old Man Fishing, had originally offered that “membership interest” to Teek, who suggested that it should instead be given to his daughter, due to the nature of the judicial position that he held at the time.In his capacity as his daughter’s guardian, Teek nevertheless became involved in the firm’s affairs, including the court case in which Kheibeb’s partners tried to wrest control of the firm from him.Old Man Fishing CC holds a seven-year hake concession that runs to 2007, through its membership in the Omaru Fishing consortium.This consortium has been awarded an annual hake quota of just over 3 000 tons, which it contributed to an ill-fated fishing partnership, Blue Ocean Products, which set up a multi-million dollar fish processing plant at Walvis Bay but was declared bankrupt in late May last year.The Old Man Fishing CC members who took Kheibeb to court in an effort to convince the court to order him not only to surrender all the property of the corporation that he had in his possession to them, but also to order him to sell his 44 per cent member’s interest to them, were Kazenango, Axali Doeseb, Gottfried Rheis, August Bikeur, Justine Harases, Erika Uiras, and Hendrick Namaseb.They claimed that Kheibeb, who had been appointed as the managing partner of Old Man Fishing, was not acting in the firm’s or the other members’ interests through the way that he was running Old Man Fishing, that it was not “reasonably practicable” for the other members to carry on the business of the corporation with him, and that in these circumstances it was “just and equitable” that he should stop being a member of the corporation.Neither Acting Judge Gidfonia Makhanya in the High Court, nor the three Acting Appeal Judges who heard the case in the Supreme Court, agreed with their claims.Among the claims that they had made was that Kheibeb had bought two vehicles for Old Man Fishing CC without getting proper authority form the other partners, and that he had paid two cheques totalling some N$404 000 into his own personal bank account instead of the firm’s, thus committing theft and fraud.Acting Appeal Judge Snyders and her colleagues on the Supreme Court bench were not convinced by these claims.With Kheibeb having explained in an affidavit that his partners had ratified the purchase of the vehicles, and that he was using his own bank account with his partners’ full knowledge while he also spent that money in the interest of Old Man Fishing, the Acting Appeal Judge concluded that it had not been shown on the documentary evidence before the court that Kheibeb had misappropriated the cheques or acted fraudulently.She was also not convinced that the other members had proven their claim that Kheibeb had furthermore stolen an investment of some N$68 000 that he had withdrawn from a company where Old Man Fishing had placed it.Kheibeb may have been let off the hook on that score, but he did not emerge unscathed from the judgement – especially as far as his competence as the managing partner in the firm is concerned.The facts that were before court – and as also admitted by Kheibeb – “are such that one may justifiably have serious doubts as to the efficacy, competency and propriety with which the business of (Old Man Fishing) is conducted, but that is not sufficient for finding in favour of the appellants,” Acting Appeal Judge Snyders stated in that respect.She added: “Furthermore, it is likely that the long and ongoing disputes between the members of (Old Man Fishing) are prejudicial to the business of (Old Man Fishing).However the appellants have not put sufficient facts before the Court to show that it is just and equitable that (Kheibeb) should cease to be a member of (Old Man Fishing).”While they lost that part of their appeal, Kheibeb’s partners won another part.In the High Court, a punitive costs order was awarded against them after Acting Judge Makhanya decided that they had been guilty of making misstatements and misrepresentations to the court and of failing to disclose some material facts to the court.That finding was not justified, Acting Appeal Judge Snyders found.She decided to instead award costs on a lower, ordinary scale to Kheibeb.Theo Frank, SC, argued the appeal on behalf of Doeseb and the other members in the Supreme Court.Kheibeb’s case was argued by Raymond Heathcote.