By Tileni Mongudhi and Ester Mbather | 1 November 2022
Namibia’s company registrar, the Business and Intellectual Property Authority (Bipa), made these claims in documents submitted to the Windhoek High Court this year.
The Namibian reported last week on how a clique of public officials appeared to manipulate the mining exploration process to favour their relatives and associates.
Minister of mines and energy Tom Alweendo subsequently removed mining commissioner Erasmus Shivolo from his position on Friday, replacing him with Isabella Kandjii-Chirchir.
Alweendo yesterday said Shivolo is not under investigation and that no allegations were made about him directly.
One of the accused people in the case is Ralph Muyamba, Alweendo’s former technical assistant.
Information has emerged that a company owned by Muyamba’s cousin, Peter Shifwaku, is accused by Bipa of “fraudulently and dishonestly” tampered with company registration documents with the help of at least two Bipa officials.
Shifwaku, one of the biggest beneficiaries of the N$50 million transaction, of at least N$18 million, is being accused of removing names from the registration of another private company to enable him to sell it to a Chinese outfit.
The entity at the heart of this saga is a company called Orange River Mining, which owned a lithium exploration licence.
Chinese-owned Xinfeng Investments bought Orange River Mining for N$50 million in June this year.
But there was an obstacle.
Bipa chief executive officer Vivienne Katjiuongua last week told The Namibian she was in the process of reporting a case to the Anti-Corruption Commission (ACC) and the police to investigate fraud and breaches at the authority.
Katjiuongua said the investigations would look into how internal procedures and rules have been circumvented for ownership of Orange River Mining to be transferred to Xinfeng.
Katjiuongua cancelled the ownership company amendments made to Orange River Mining in July this year after detecting the alleged fraud.
This forced the Chinese mining company, with the help of lawyer Sisa Namandje, to successfully sue Bipa over their decision.
Katjiuongua in court documents said she cancelled the amendments to Orange River Mining in July this year and declared the said company registration documents as having been obtained fraudulently.
She added in her affidavit that the change of ownership was not in line with the provisions of the Close Corporations Act.
“My decision to cancel the amendment was also informed by the fact that internal procedures applicable to the amendments to close corporations were not complied with, specifically the procedure at the Business and Intellectual Property Authority of recreating a file where the original cannot be found, and the procedures regulating the amendments of founding statements,” her affidavit read.
DEVIL IN THE DETAIL
Court documents indicate that Katjiuongua received information on 26 June this year, alerting her that an unauthorised attempt would be made to change the ownership structure of Orange River Mining.
She said in such an event the internal process would call on her to take custody of the said company file and keep it in her office under lock and key.
She then informed her staff that should a member of the public request the said file, they should be directed to her office to inspect the file there.
“In this case the records department was aware that the original file is signed out to the office of the registrar, and was also informed of the possible attempt to make amendments to the founding statement,” read her statement, which added that this information was somehow not shared or ignored by the staff members who created a duplicate file and attended to the file.
The staff members then initiated a process outside of the authority’s rules and procedures of recreating a file through which the original file cannot be found.
Katjiuongua was then notified on 6 July that the ownership structure of Orange River Mining has been changed and company documents at the authority have been amended, despite the file being in her office.
“Ordinarily the original file must be requested for an amendment to the founding statement to be processed. This did not happen in this case,” the affidavit read.
After investigating, she found that a personal assistant to one of the executives, who has no jurisdiction over files or company registration processes, requested that a temporary file be created because representatives of Orange River Mining urgently wanted to make changes to the file.
According to Kajiuongua, a temporary company file can only be created in the event the original is lost and a diligent search has confirmed that the file is lost.
The file was also recaptured on the system by an administrative assistant, while it was the duty of the senior business registration officer to do that.
The Bipa investigation also found that at the time, Orange River Mining was registered as 85% owned by Hineni Investments, which was represented by Gideon Smith.
Smith’s signature was allegedly fraudulently pasted onto company documents to allow for the transfer of ownership.
This happened after the relationship between Muyamba’s cousin and his partners, Hineni Investments, deteriorated.
Hineni Investments failed to pay for their 85% stake in Orange River Mining despite Shifwaku extending their deadline several times to make a N$4 million payment for their stake.
Shifwaku then started talks with Xinfeng, which then offered N$50 million.
It appears that Shifwaku was failing or struggling to convince Hineni Investments and Smith to sign over the 85% stake.
That is when a new Orange River Mining file was illegally recreated at Bipa to sign the company over to Xinfeng.
Katjiuongua on 8 July then decided to cancel the Orange River file and declared the documents stating Xinfeng as owning the company 100% as fraudulent documents.
Xinfeng went to court to get her decision to cancel the file subjected to a review, mainly because the company was not granted an audience to state its case to Bipa before the decision to cancel the file was made.
Xinfeng succeeded in the High Court, but the case is now on appeal in the Supreme Court.
*This article has been produced by The Namibian Investigative Unit. Contact us with your secure email at [email protected]