Judge raises concern over handling of Kora funds

06 September 2021 | Justice

ELLANIE SMIT

WINDHOEK

Judge Herman Oosthuizen last week expressed deep concern in the manner which public funds are handled when he heard closing submissions in the Kora All Africa Music Awards case.

“We complain about public funding spending, but I cannot help but wonder, when the terms of the agreement were debated, was there any sense of urgency to protect public funding?” Oosthuizen asked.

The Namibia Tourism Board (NTB) instigated legal action against the owners of the awards in an attempt to recover the more than N$23.5 million it paid to market Namibia at the event.

The legal action followed an apparent breach of contract by the Kora owners to host the event and non-compliance to refund NTB’s money within a specified time period.

Meanwhile, the NTB is accused of breaching contract due to delayed payments.

The tourism board sued Mundial Telecom Sarl, Kora founder Ernest Adjovi and Tonata Shiimi in September 2016 for N$23.5 million - plus 20% interest - which it paid for the purchase of a platinum tourism package it never received.

Mundial owns the rights to host the awards show, while Adjovi acted as the president of the company and Shiimi was the national director of the awards.

Mundial planned to host the awards ceremony in Namibia on 20 March 2016.

Both parties focused much of their closing arguments on the Namibian government, which, through the tourism ministry, had entered into a US$6 million agreement with Mundial to host the awards show here.

The agreement stipulated that US$2 million must be paid to the company by 11 December 2015.

Should this amount not be paid by that date, the event would not be held and the parties would have no further obligations to one another.

The agreement was signed on 8 November 2015, only a week before an offer was made to the NTB to buy a US$2 million promotional package from Mundial as part of the awards. NTB negotiated this down to US$1.5 million.

The advertising deal between NTB and Mundial, signed on 4 December 2015, stipulated that the payment of US$1.5 million should be made by 10 December 2015.

The first payment of N$5 million was made on 22 December and on 17 February, N$8.5 million was transferred.

Third party to blame

As senior counsel for NTB, advocate Thabang Phatela argued that the reason why Mundial was unable to provide the promotional package was not because of a delayed payment, but because they were not able to host the event as they were disappointed by a third party -government.

It was also stressed that the agreement signed with the NTB supersedes that signed with government, because it was signed afterwards.

He said the reliance on the agreement with government also makes it difficult to rely on as evidence as neither Adjovi nor government appeared as a witness before court.

Phatela stressed that the NTB was not responsible for the successful hosting of the event or raising money for the event and is entitled to its funds.

More responsibility

James Diedericks for the defence said obligations that Mundial had in the national agreement directly impact its agreement with NTB.

He therefore argued that the national agreement stated that if certain sponsorships were not acquired by 11 December, Mundial would have no obligation to hold the event any more and if there was no event, it could not provide a promotional package to the NTB.

Oostuizen said while he can understand both parties’ arguments, he sees something that is very disturbing.

“It is an observation that I make. I make that observation because I am worried. I wish that I could see more responsibility of our funds.”

The case has been postponed for judgement to 9 December.

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