By:Justicia Shipena
Suspended Managing Director of the National Petroleum Corporation of Namibia (Namcor) has recently surfaced to fight his suspension.
Taking legal action, he has hired Jermaine Muchali Attorneys as his legal representation to challenge his suspension.
Mulunga has labelled his suspension as ‘unlawful’ in a letter dated 22 May 2023 to Namcor’s board chairperson Jennifer Comalie and demands that he resume work at the state body on 01 June 2023.
Namcor suspended Mulunga in April after it was shaken by allegations that he made a N$100 million Angola oil payment that was not permitted by the board.
Lionel Matthews, former Nedbank Managing Director, was chosen as an external managing director for an ‘independent investigation’ by the state institution before declining the job, making Shiwana Ndeunyema the acting MD.
This also comes as this paper had reported in the same month of a December 2022 report, in possession of The Villager that a South African the law firm said it found that the payment by Mulunga needed to be authorised by the board before it was made.
Mulunga’s suspension is unlawful, according to Jermaine Muchali Attorneys, because the board of directors acted in violation of Section 3 of the Common Principles of Corporate Governance and Good Practice 3 of 2016.
“Section 3 provides that: Before any suspension can be undertaken by a Board of a Public Enterprise, the Board MUST consult the Minister responsible for Public Enterprises and the Portfolio Minister,” said the lawyers.
They further argue that the Finance and Enterprises Minister, Iipumbu Shiimi, did not offer any formal notification approving the Board’s suspension of Mulunga.
It bemoaned the board’s indiscriminate contempt for ministerial oversight and its failure to properly adhere to the letter of the law.
” Our external investigation team performed due diligence into the possible existence of any written notice with ministerial approval to suspend our client. We have established beyond a shadow of a doubt that such written notice does not exist to this current date,” reads the letter.
It further stated that if the written notification to suspend its client miraculously and unexpectedly becomes accessible, it will corroborate Mulunga’s claim of prejudice from both the Minister of Finance and the Minister of Mines and Energy.
Mulunga also labelled the grounds of suspicion as ‘vague and embarrassing’.
According to the letter in possession of The Villager, Mulunga’s suspension notice dated 4 April 2023, stated that he was suspended for these purported wrongdoings, “including but not limited to leakage of information, stock losses, without being so authorised, deposing to an affidavit compromising the interest of Namcor in litigation against Namcor,” as well as breach of trust and his role and/or involvement in such wrongdoings.
“The cited grounds of suspension are vague, embarrassing and lack any substance or particularity whatsoever and will not stand the test of reasonableness and fairness in terms of Article 18 of the constitution when challenged in a competent court of law,” stated the demand letter to Comalie.
According to the lawyers, the allegations of information leakage do not specify to whom, when, to what end, the content of the material, or for what purpose the information was allegedly released by Mulunga.
It claims that the stock losses allegation is unfounded and humiliating because their client is the one who disclosed the stock losses at a legally constituted board meeting, and it also claims that management initiated an investigation into the stock losses at Husab Mine.
“Our client also provided suggestions to remedy the predicament. For the board to turn around and use the stock losses as one of the grounds to suspend our client is simply incomprehensible.”
“On top of that there is no allegation as to the role our client allegedly partook in any stock losses, when they were incurred, how they were incurred, in what quantity they were incurred, whose responsibility it may have been, and how our client is responsible for such alleged stock losses as the Managing Director of Namcor,” it further reads.
On the allegation of trust, Jermaine Muchali Attorneys said the allegation is hogwash.
The lawyers stated that the allegation of breach of trust is ‘vague,’ adding that there is no indication of how the trust was breached, when it was breached, or what obligations this duty of trust entailed, which “our client allegedly breached,” while stamping that it is a baseless and embarrassing allegation.
In this light, it was stated that the alleged grounds for suspension are minor offences with no elements of dishonesty or harm to Namcor.
“It has no elements of risking the lives of employees and no elements of defeating or obstructing the internal investigations at Namcor,” said Jermaine Muchali Attorneys.
Furthermore, the law firm indicated that the alleged grounds for suspension are not dismissible offences, and that the board’s decision to suspend Mulunga was unprocedural and illegitimate.
“It is our client’s submission that the impugned decision of his suspension was made contrary to the maxim of audi alteram partem, in that he was not afforded an opportunity to make representations in support of his non-suspension both in writing and/or orally to the board, to the Minister of Finance and the Minister of Mines and Energy.”
According to the lawyers, failure to hear out Mulunga is a blatant breach of his fundamental right to justice, which is established in the constitution.
“it is our submission that the board did not properly apply its mind when endorsing the suspension due to political interference, media conspiracy theories, and public social media pressure, amongst others.”
Mulunga is also seeking that his unconstitutional suspension be lifted and invalidated on or before May 31, 2023, and that he resume official duties at Petroleum House on June 1, 2023.
“Failure to comply with the demands of our client reserves all his constitutional and common law rights to seek redress in the High Court of Namibia,” they said.