Tuesday 13 April 2021
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Telecom Chair takes government to court over Board appointment

By Kelvin Chiringa

In what can only be described as a historic first, Telecom Namibia dragged its sole shareholder to the high court in defiance of a Cabinet decision to replace acting board chairperson, Irene Simeon-Kurtz, in favour of current board member Fernando Somaeb, The Patriot can reveal. After Cabinet’s decision to appoint a new Board with Somaeb as chairperson, NPTH informed Telecom Namibia to effect this.  In turn, Telecom decided to disregard this directive citing anomalies in terms of the parastatals Founding Articles.
Sources in the know and who are close to Telecom affairs have disclosed to The Patriot that Cabinet green-lighted Somaeb to the helm of the parastatal, much to the chagrin of Simeon-Kurtz.
The decision to appoint Somaeb was made around the 6th of December 2018, court documents reveal.
In a scathing response to these developments, Simeon-Kurtz said the appointment has created two centres of power at Telecom which has caused so much stress and confusion on her team.
She slammed the appointment as hopeless and flawed as it contravened Telecom’s existing laws.
It has further come to light that Somaeb has received the blessing of Information communications and technology minister, Stanly Simaata sending the parastatal in the throes of a game of thrones in which Simeon-Kurtz is fighting to remain as the centre of power. Simeon-Kurtz claims that Cabinet doesn’t have the power to appoint a Board chairperson, but rather that the minister in consultation with Cabinet should do so.
Simeon-Kurtz consequently filed an urgent court application at the High Court to challenge the water shed decision but she suffered an early defeat as it was struck down, on the point that it was not an urgent matter.
However, she has raised alarm to the effect that a long drawn out court process to correct the alleged anomaly will possibly see judgment being laid down in 2020.
“The board would thus be seriously compromised in its functioning for a further six to eight months,” she said.
Court documents seen by The Patriot show that Telecom, listed as the applicant, dragged Cabinet, Simataa, public enterprises minister Leon Jooste, the Namibia Post and Telecommunications Holdings Limited (NPTH), Somaeb and Willem Titus, who is a board member, as respondents in the matter.
The Telecom board, represented by lawyer Frans Kwala is challenging the appointment of Titus as well.
“Fact is MICT wanted Somaeb appointed and NPTH instructed Telecom Namibia (TN) to that effect. The Cabinet submission was also in line with this.” the source who declined to be named disclosed.
Public enterprises minister Leon Jooste confirmed these developments saying that he wrote to the NPTH board “to request that they explain themselves,” but added that he was still waiting for their response.

The court case
According to the founding affidavit lodged by Simeon-Kurtz, Telecom wanted the court to set aside the cabinet decision that propped Somaeb to the helm of the entity as well as the appointment of Titus as board member.
The board also wanted the court to restrain Cabinet and NPTH from giving effect to the decision.
Telecom alleges that the Cabinet decision to appoint Somaeb and Titus was flawed and contravened the entity’s laws as such power was vested in the line minister as per the Telecommunications and Public Enterprises Acts.
“In terms of Section 14 read together with Section 15 of the Act, the minister of public enterprises makes recommendations to the portfolio minister on the appointment of the board members and the appointment of the chairperson of the board. In terms of Section 15 (5) the portfolio minister would then appoint such persons to the board,” reads the founding affidavit.
According to the board, this is because Section 13 of the public enterprises Act overrides the Post and Telecommunications Act and Telecom’s Memorandum of Association and Articles of Association in relation to the appointment of directors.
The board has challenged that the decision to appoint both Somaeb and Titus was “hopeless” and “fundamentally flawed” as there was an unlawful abdication of the minister’s statutory powers and discretion. Cabinet, Telecom has said, only plays a supervisor role.

Cul de sac
In the founding affidavit, Simeon-Kurtz cites sight of an email by NPTH Board member, Leilanie Hochobeb registering her confusion with the appointments “since the holding company had never endorsed the two individuals for such appointments”.
The acting chairperson also said that the appointment of Somaeb was done without her knowledge at an annual general meeting which was procedurally convened.
“This only came to light when Mr. Willem Titus copied me in on an email dated 30 April 2019 where he referred to Fernando Somaeb as the chairperson of the applicant’s board,” said Simeon-Kurtz.
NPTH chairperson, Lena Kangandjela said Simeon-Kurtz failed to make a solid court case adding that she did not have any evidence that such a decision was ever made.
She insisted that the decision to make the appointments was rather made by Simaata through the NPTH board.
“More importantly, the appointment of sixth (Somaeb) and seventh respondents (Titus) has since been withdrawn on 2 May 2019, to the knowledge of the applicant,” she added.
Kangandjela further said Telecom misconstrued an endorsement by Cabinet as an appointment.
The court has however refused to endorse the matter as urgent and ordered Telecom to pay the costs of the application.
The matter was consequently removed from the roll and regarded as finalised.

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