Africa-Press – Namibia. FORMER Miss Universe Michelle McLean and three fellow trustees of her charitable trust have won an appeal against a High Court judgement in which a former executive director of the trust was awarded millions of Namibia dollars after he sued the welfare organisation.
In a judgement delivered in the Supreme Court yesterday, deputy chief justice Petrus Damaseb commented that the Michelle McLean Children Trust had been poorly run, with a complete lack of oversight by its trustees, while the trust’s executive director, Danie Botes, failed to disclose important information about the trust’s affairs to the trustees.
Damaseb – with appeal judges Sylvester Mainga and Elton Hoff agreeing with his judgement – reasoned that the High Court wrongly concluded that Botes was entitled to receive commission on the gross, instead of the nett, income of the trust.
Damaseb found that Botes, by charging commission on the trust’s gross income, derived a benefit from the trust to which he had no legal right.
He also noted that Botes accepted he had been paid commission on value-added tax refunds received by the trust and on a sale of shares of the trust for N$2 million, when he was not entitled to commission on that transaction or on VAT refunds.
Damaseb remarked: “How on anybody’s showing Mr Botes can suggest that he did not misappropriate trust property by taking commission on VAT refunds or on the sale of an asset defies reason.”
Damaseb, Mainga and Hoff set aside an order given by judge Thomas Masuku in the High Court in September 2019, and with that dismissed three claims of Botes against the trustees of the Michelle McLean Children Trust.
In the High Court’s judgement, Masuku awarded Botes N$1,9 million over the termination of his employment with the trust in November 2013, close to N$945 000 in unpaid pension fund contributions, and an unspecified amount for earnings which he lost because his employment contract with the trust had been cut short.
In the Supreme Court’s judgement, Damaseb concluded that only part of Botes’ claim for unpaid pension benefits – due to him from 2010, and not for the period before that – should have been successful.
Botes had been employed by the trust, of which he was the administrator and principal fundraiser, from 1994. He was suspended from his position in September 2013 and his employment was terminated two months later, after the trust’s auditors had reported to the trustees that they had discovered irregularities in the trust’s affairs, including alleged overpayments to Botes.
Botes subsequently sued the trustees – McLean, Nic Kruger, Conny Maritz and Selma Shejavali – and the trustees in turn counter-sued him for close to N$5 million.
Damaseb commented in his judgement that the trustees appeared to have had a lot of faith in Botes, and that they effectively left the running of the trust to him.
Had the trustees been diligent in the performance of the fiduciary duties, they would have established earlier than September 2013 that Botes was authorising payments to himself to which he was not entitled, the deputy chief justice stated.
Senior counsel Jean Marais and Raymond Heathcote led the two legal teams which represented the trustees in the appeal.
Senior counsel Michael Fitzgerald led the team which represented Botes.
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