NAMCOR has launched a legal bid to gain access to financial records, travel records, and the communications and business records of seven people it deems responsible for a transaction in which it lost N$53 million.
A court motion filed by the National Petroleum Corporation of Namibia is the latest twist in a lawsuit which started in December 2023
In it, the parastatal blames suspended managing director Immanual Mulunga; former chief financial officer Jennifer Hamukwaya; former head of supply and distribution Cornelius (Cedric) Willemse; and, former territory manager responsible for commercial downstream sales and marketing, Olivia Dunaiski, for the transaction. Also listed as respondents are retired brigadier general James Auala and businessmen brothers Peter and Malakia Elindi.
It is suing all of them in their personal capacities.
In December 2023, Namcor decided to sue Enercon Namibia, a company tied to the Elindi brothers and Auala, in an attempt to recover the N$53 million in what it now calls a bogus deal.
The deal was an attempt by Namcor to acquire storage facilities from Enercon, but it later emerged that these facilities already belonged to the government.
Namcor deemed the transaction ‘a sham’ and is now trying to recover the money from all those involved.
The then Namcor officials are now listed as the fifth, sixth, seventh and eighth respondents, joining Auala, Peter and Malakia Elindi, who are the second, third and fourth respondents. Enercon Namibia is listed as the first respondent.
It has been reported that the Elindi brothers owned 75% of Enercon Namibia, while the military, through its business arm August 26 Holdings, owned the remaining 25%.
Auala was the long-serving managing director of August 26 Holdings before he retired in 2018.
PARALLEL LINES
In court documents submitted to the High Court on 8 December, Namcor presented a case of fraudulent dealings that included “bogus” valuations to justify the national oil company paying N$53 million for an asset that belonged to the ministry of defence.
Namcor is asking the court to hold all the accused liable for the transaction which it terms fraudulent.
It also wants the court to order that the N$53 million be paid back with interest of 20% a year from 19 July 2022 until the date of final payment.
The parastatal further wants the nine defendants to be held liable for the payment jointly and severally, meaning they all have equal responsibility for the bill.
Court documents state that Namcor is also seeking an order declaring the 2022 agreement between Namcor and Enercon for the purchase of the assets null and void.
It also wants the court to declare that the Enercon directors – Auala, and Peter and Malakia Elindi – knowingly ran Enercon in a fraudulent and reckless manner and that they personally be held liable for Enercon’s debt.
This court action is running parallel to a case in which Namcor is seeking to shut down and liquidate Enercon and another company linked to military fuel supplier Erongo Petroleum.
They jointly owe Namcor N$380 million in unpaid debt for fuel products supplied to them.
Erongo Petroleum is reportedly owned by Austin Elindi, son of Peter Elindi. Erongo Petroleum owes Namcor N$266 million, while Enercon owes the national oil company more than N$114 million.
‘SHOW US THE RECORDS’
Last week, Namcor, through its lawyer Willem van Greunen, asked the court to compel the defendants to make the requested records available.
In the case of Mulunga, Hamukwaya, Willemse, Dunaiski, Auala, Peter and Malakia Ekindi, the parastatal wants to see all the bank statements of all bank accounts in their names for the period between March 2022 and December 2023, all the names of companies and trusts in which they have individual interests, shareholdings or are beneficiaries, and the bank statements of all these entities for the same period.
They are also being requested to provide all of their communications regarding fuel supply agreements, asset acquisition agreements and cession agreements leading to the transaction.
In addition, they are being asked to provide detailed reports of their international travel history and passports for the period between March 2022 to April 2024.
ENERCON ACCESS
As for Enercon Namibia, the oil parastatal is demanding access to all its bank statements for every bank account in the company’s name from March 2022 to December 2023. They want to see:
All its bank statements and financial records related to payments for petroleum products to Namcor in respect of fuel supply agreements between the two entities, as well as all purchase orders between the two companies.
All Enercon’s financial statements between March 2022 to December 2023, as well as all documents and information related to the company’s current and former shareholders and directors.
All email communications related to the asset acquisition and fuel supply agreements between the two entities and proof of payments related to the asset acquisition transaction.
All agreements between Enercon and the defence ministry related to the buying, sale and storage of petroleum products and maintenance agreements, as well as all communications between the two regarding these agreements.
A fuel supply technology agreement between the defence ministry, its former executive director Petrus Shivute, and an entity known as DPF Energy and Minerals and all DPF Energy and Minerals’ name change and related documents.
All documents, emails and communications between Enercon and Eco Fuel Investments and the two entities’ cession agreements. Eco Fuel is linked to a relative of Peter Elindi, Victor Malima, who also served as Enercon managing director during 2023.
All transport permits and weighbridge records related to fuel purchases from Namcor between March 2022 to December 2023.
On Tuesday last week, Judge Shafimana Ueitele ordered that the defendants have until 15 August to submit affidavits that support their opposition to providing their documents.
Namcor has until 30 August to submit their arguments supporting their motion. The defendants will then get a chance to file their heads of arguments until 6 September, while the case was postponed to 12 September.
Auala and the Elindi brothers were represented by Appolos Shimakeleni and Mulunga. Hamukwaya and Willemse were represented by Francois Bangamwabo.