By Megameno Shikwambi
Businessman, Titus Nakuumba, owner of Afrikuumba has lost his case in the High Court in which he was seeking to secure a disputed joint venture agreement with TransNamib for the development of a N$1 billion project.
Acting High Court Judge Kaijata Kangueehi said Nakuumba’s case lacked urgency.
He struck the case from the roll, considered it finalised before ordering Nakuumba to pay for the legal costs. Nakuumba will now have to take the longer court route in a bid to reverse a decision by works minister John Mutorwa who instructed TransNamib to cancel a joint venture agreement signed sometime between 2010/11 for the development of a N$1 billion worth property.
The developments were to be done on a portion of Erf 194 which according to Mutorwa is property owned by TransNamib.
Mutorwa also instructed that TransNamib cancels a 99-year lease agreement signed between the two parties after he described the whole deal as “scandalous”.
According to court documents seen by The Patriot, on 5 July 2019, the ministry of works directed TransNamib to terminate various joint venture or long lease agreements entered into by Afrikuumba and TransNamib.
In his court papers, Mutorwa has argued that Nakuumba’s company was not a subsidiary of TransNamib as per the National Transport Services Act, and thus could not jointly develop TransNamib’s property.
He said the whole scheme was thus a nullity. Mutorwa said that it is clear from Nakuumba’s founding affidavit that his submission of a proposal for the development of the said property back in 2010 was not done via a competitive process. The minister also said the proposal was never requested for by TransNamib in the very first place.
He said the joint venture agreement was made without the consent of the minister as well.
Mutorwa described the joint venture as scandalous in that it provided for the formation of a company to serve as the joint venture vehicle in which TransNamib, despite being the owner of the property to be developed would have only 22% share ownership while Afrikuumba had 78%.
The minister has also taken offense at the fact that over and above such an ownership arrangement, Afrikuumba would still have the power to appoint the chairperson of the company’s board.
Afrikuumba was seeking an order interdicting and restraining the minister of works Mutorwa, TransNamib and the minister of Public Enterprises, Leon Jooste as well as the government from giving effect to the decision.
The businessman accused Mutorwa and Cabinet for unduly interfering into the relationship between his company and TransNamib, thereby sabotaging the N$1 billion investment.
Nakuumba has said that he has had a business relationship with TransNamib for eight years now and that between 2010/11, his company submitted a proposal in respect of the said property.
Nakuumba said his company was given a 99 year lease to develop the property and after recovering its investments, it was to hand over the property to TransNamib.
However, when Erkki Nghimtina became minister of works, he instructed that the agreement be revoked and to terminate the property development.
Former TransNamib CEO Saara Naanda wrote to Nakuumba informing him of the decision to terminate.
Nakuumba said he tried to negotiate with TransNamib before approaching the court for relief.
However when Alpheus Naruseb took over at the ministry, a letter was issued him requesting that he allow the joint venture with Afrikuumba to continue in order to avoid costly law-suits on the part of TransNamib and government.
Nakuumba has claimed that the current minister, John Mutorwa has illegally interfered with the TransNamib board to the point of taking a decision to cancel its joint venture agreements with Afrikuumba.
The judge’s reasoning
“Urgent applications are not there for the taking.
There is no explanation on the papers why the applicant waited for five years to come to court and more so on urgency.
Another reality is that if it were terminated in 2014, what right does the applicant have to come to court in 2019.
The applicant has failed to set out the circumstances which render this application urgent as well as why the applicant will not be afforded substantial redress at a hearing in due course,” said the judge in his ruling.