By Kelvin Chiringa
Two Supreme Court judges refused to preside over a court battle to stop the flight of insurance capital to South Africa citing a conflict of interest, yet Justice Theo Frank accepted to handle the case well aware that he too was conflicted, a recent investigation has revealed.
The legal battle has tipped NamibRe and the finance ministry against a horde of insurance top guns most of which have South African parent companies.
NamibRe and the finance ministry, represented by lawyers Astrid Feris and Sisa Namandje, want the insurance companies to reinsure a percentage of their insurance within the country to benefit the local economy rather than shipping monies to SA.
“The measures are justified on the basis that it will assist building a sustainable reinsurance industry in Namibia and minimize the extent to which the reinsurance premiums are exported out of Namibia,” the legal team argued.
Failure to comply would thus constitute an offence attracting a N$150 000 fine or a jail term for insurance chief executive officers.
Having lost the case in the High Court, on a temporary basis, lawyers for the ministry and NamibRe petitioned the Supreme Court to dispute the ruling, but they hit a brick wall as Judge Frank rejected it.
However, it has come to light that Frank may have been well aware that he had an interest in the case as he used to be a legal counsel of the insurance industry at one point in the 90s.
He is also said to have held a position between 2006 and 2009 as a director of Trustco Holdings where he brushed shoulders with the company’s managing director, Quinton van Rooyen. Frank is also currently the Chairperson of the Nedbank Board of Directors, which is a company owned by Old Mutual.
Frank was a judge of Namibia’s High Court from 1990 and resigned in 1996.
However, he would in 2017, be appointed by President Hage Geingob as acting Judge of Appeal together with Fred Chomba and Yvonne Mokgoro.
The Patriot is reliably informed that Justice Shafimane Uitele had distanced himself from the case citing that he was a close friend of Old Mutual’s big wig Kosmas Egumbo. Another judge, Hosea Angula also refused to handle the matter citing that he once used to be the chairperson of Old Mutual Namibia for a lengthy period.
Why Frank proceeded to handle the matter given his past dealings with the insurance companies has raised eye brows, and his consequent decision to bar the matter from being heard in the Supreme Court has left tongues wagging.
Citing this conflict of interest and the ultimate recusal of Frank, Feris has successfully had his refusal to entertain the petition in the highest court declared a nullity.
The petition will thus be heard afresh.
The crux of the matter
With Namibia’s floundering economy failing to raise the standards of living for many Namibians, the ministry and NamibRe are in a race to stop the loss of some N$8 billion per year to South Africa. What has also emerged is that South Africa has been benefitting off Namibian monies buoyed by the fact that there were no reinsurance laws to restrict capital flight. Feris told The Patriot that until now, South Africa does not have such legislation.
Given the huge sums leaving the country, Namibia took lessons from a host of other countries that have such legislation but the minute the legislation was out in force, insurance companies panicked.
They further claimed that reinsuring part of their business with NamibRe has an effect on their profits.
They challenged the legislation as unconstitutional and during a submission in the High Court, one of their lawyers described it as “draconian”.
“But the law is the law,” Feris said soon after winning the Supreme Court judgement.
Feris, who has been working on the case for three years now said the need has become even more urgent now that government has been left with no option but to appeal for 2% voluntary salary deductions from politicians and the general citizens.
Now that Frank is out of the picture, her appeal case against the High Court ruling can now be heard before the highest court of the land.