Court questions SME Bank urgency
The High Court reserved its ruling on the urgency of the claim that the Bank of Namibia acted unlawfully when it suspended the directors and senior executives of the SME Bank and appointed an interim board and acting CEO.
Judge Shafimana Ueitele is expected to give his ruling on 19 April. The urgent application is a sequel to the dismissal of the board of the SME Bank on 24 February by the Bank of Namibia's governor Ipumbu Shiimi.
An interim board was immediately appointed to manage the bank which includes Advocate Dennis Khama, Melani Tjijenda, Ali Ipinge and Manuel Kisting. Benustus Herunga, a long-serving member of the executive management team at the bank was appointed as acting CEO. The applicants, Tawanda Mumvuma, Enock Kamushinda, Ozias Bvute, Joseph Banda, Alec Gore and George Simataa, described the action as extra-ordinary and invasive and lodged a challenge on urgent basis. Mumvuma, executive director and CEO of the SME bank, in a sworn statement said that the application is extremely urgent as the illegality, apart from the direct and immediate irreparable harm, is also incompatible with the requirements of the rule of law. The further grounds for urgency, he said, is that is the bank is currently being run unlawfully by a purported interim board of directors appointed by the Bank of Namibia and its board when they do not have such powers. The respondents in the matter were listed as the chairperson of the board of the Bank of Namibia, the Bank of Namibia, SME Bank Namibia and the interim SME Bank board members Dennis Khama and Ali Ipinge. According to Mumvuma, members of the public therefore are on a daily basis made to transact with the SME Bank while it is being managed by an unlawful board and an unlawfully appointed CEO. “These are exceptional grounds for urgency as the banking transactions being undertaken are at the risk of being successfully impugned in future on these grounds,” Mumvuma argued.
The former directors and executives requested the court to set aside the Bank of Namibia's decision to remove them and to reinstate them while they continue further legal proceedings where they will be asking the court to review and set aside the Bank of Namibia's decision on 24 February to take control of the SME Bank, and to have that decision declared unlawful and invalid. Ueitele urged the applicants to justify why they should jump to other avenues for relief and come to court with an urgent application.“The applicants have avenues in the Labour Law where they can sue the respondents in terms of the provisions of the Act,” he said.
He then urged Mumvuma and the other applicants to place facts before court on how they will suffer irreparable damage if the matter is not heard on urgent basis.
The judge added that the requirements of urgency need to be set out in the documents. South African counsel Advocate Vincent Maleka, appeared on behalf of the applicants and maintained that there is no further sufficient redress if the matter is not heard on urgent basis. He emphasised that the respondents acted outside the law and emphasised the Rule of Law and Constitution. They were removed never to reoccupy their positions at the SME bank.
According to him the exercise of any public power should be authorised by law, that is, either by the Constitution or by any other law recognised by or made under the Constitution. “The exercise of public power is only legitimate where it is lawful,” he said.
He said in a matter such as this case the element of fairness, required for the validity of administrative action as per Article 18 of the Namibian Constitution obligates any public decision-maker to exercise appropriate concern and caution.
FRED GOEIEMAN
Judge Shafimana Ueitele is expected to give his ruling on 19 April. The urgent application is a sequel to the dismissal of the board of the SME Bank on 24 February by the Bank of Namibia's governor Ipumbu Shiimi.
An interim board was immediately appointed to manage the bank which includes Advocate Dennis Khama, Melani Tjijenda, Ali Ipinge and Manuel Kisting. Benustus Herunga, a long-serving member of the executive management team at the bank was appointed as acting CEO. The applicants, Tawanda Mumvuma, Enock Kamushinda, Ozias Bvute, Joseph Banda, Alec Gore and George Simataa, described the action as extra-ordinary and invasive and lodged a challenge on urgent basis. Mumvuma, executive director and CEO of the SME bank, in a sworn statement said that the application is extremely urgent as the illegality, apart from the direct and immediate irreparable harm, is also incompatible with the requirements of the rule of law. The further grounds for urgency, he said, is that is the bank is currently being run unlawfully by a purported interim board of directors appointed by the Bank of Namibia and its board when they do not have such powers. The respondents in the matter were listed as the chairperson of the board of the Bank of Namibia, the Bank of Namibia, SME Bank Namibia and the interim SME Bank board members Dennis Khama and Ali Ipinge. According to Mumvuma, members of the public therefore are on a daily basis made to transact with the SME Bank while it is being managed by an unlawful board and an unlawfully appointed CEO. “These are exceptional grounds for urgency as the banking transactions being undertaken are at the risk of being successfully impugned in future on these grounds,” Mumvuma argued.
The former directors and executives requested the court to set aside the Bank of Namibia's decision to remove them and to reinstate them while they continue further legal proceedings where they will be asking the court to review and set aside the Bank of Namibia's decision on 24 February to take control of the SME Bank, and to have that decision declared unlawful and invalid. Ueitele urged the applicants to justify why they should jump to other avenues for relief and come to court with an urgent application.“The applicants have avenues in the Labour Law where they can sue the respondents in terms of the provisions of the Act,” he said.
He then urged Mumvuma and the other applicants to place facts before court on how they will suffer irreparable damage if the matter is not heard on urgent basis.
The judge added that the requirements of urgency need to be set out in the documents. South African counsel Advocate Vincent Maleka, appeared on behalf of the applicants and maintained that there is no further sufficient redress if the matter is not heard on urgent basis. He emphasised that the respondents acted outside the law and emphasised the Rule of Law and Constitution. They were removed never to reoccupy their positions at the SME bank.
According to him the exercise of any public power should be authorised by law, that is, either by the Constitution or by any other law recognised by or made under the Constitution. “The exercise of public power is only legitimate where it is lawful,” he said.
He said in a matter such as this case the element of fairness, required for the validity of administrative action as per Article 18 of the Namibian Constitution obligates any public decision-maker to exercise appropriate concern and caution.
FRED GOEIEMAN
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