Africa-Press – Namibia. Maria Amakali
Ongwediva Medipark is dealing with more legal drama after the hospital got rid of some of its directors. The northern-based private hospital is being sued by its former director, Penda Kashihakumwa, who claims his ousting on 17 December last year was unlawful.
Kashihakumwa, an employee of Ongwediva Town Council, was nominated and appointed in October 2021 by the town council to represent its interest as one of the hospital’s board of directors.
He claims the town council owns a 10% stake in the hospital. The town council is, however, not on the shareholder’s list.
Kashihakumwa wants the High Court to set aside the decision taken by the hospital to remove him as director and reinstate him. He also wants the director’s fees he would have earned as of December 2021 to date.
As per the shareholder’s agreement, they are entitled to nominate and appoint three directors to form part of the board members.
“The Act allows for the removal of the director in terms of the shareholders’ agreement only if the director’s term in office has expired. But at the time, I was removed as director, my term of office had not expired,” said Kashihakumwa in his affidavit.
He further said the law requires that prior to his removal, he was supposed to be given an opportunity to present his side – which he was never afforded. Gabriel du Toit, on behalf of the hospital, said its affairs are managed directly by the directors but the appointment and removal of directors lie in the hands of the shareholders.
He said the relief sought by Kashihakumwa would impact the hospital and those who deal with its affairs.
“The effect of the relief which is sought by the applicant (Kashihakumwa), is that the shareholders will have a director appointed to the company they own, without such person having been appointed by the shareholders at subsequent meetings or by way of subsequent resolution, to hold such directorship,” said Du Toit.
He said as per the shareholder’s agreement, Ongwediva Medipark Investments as a majority shareholder had the right to appoint three directors.
However, in November 2021, there were eight non-executive directors – one more director than required.
He said it was necessary to reduce the number to create a vacancy that will enable Ongwediva Medipark Investments to make its full appointments.
He said the town council is not a shareholder, thus they are not entitled to appoint Kashihakumwa as a director.
According to the shareholder’s agreement, the hospital has five shareholders; Ongwediva Medipark Investments, Ongwediva Medipark partners, Namibia Institute of Pathology, VPB Namibia, and Trustees of the VPB Namibia Growth Fund.
He said the time Kashihakumwa was director alongside the hospital’s former managing director, doctor Tshali Iithete, he entered into agreements that resulted in the hospital incurring N$13 million in debt.
“The transactions, as well as the representations made by the first applicant (Kashihakumwa) which resulted in Ongwediva Medipark incurring a substantial debt of over N$13 million, are still being investigated,” said Du Toit.
This matter is yet to be heard in the High Court.
Shareholding debacle
The Trustees of VPB Namibia Growth Fund have taken the hospital’s other shareholders to court for selling of their shares without their knowledge.
The fund, which is capitalised by the Government Institutions Pension Fund (GIPF) to make investments on its behalf, owns 29.7% shares in the hospital.
The fund’s manager, Daudi Mtonga said the acquisition of the shares of SAD Consult and Ongwediva Medipark Investors (OMI) by Staten Island Investments constitutes a change in control of Ongwediva Medipark Investors and Ongwediva Medipark Partners (OMP) and was also unknown by other shareholders.
He said the two companies should have first offered the shares to other shareholders before disposing them off. Thus, he wants the court to compel Medipark to give them that opportunity to purchase the shares.
“OMI and OMP did not obtain other 21% shareholders’ consent and did not transmit written notices to other shareholders when the changes in control took place and the applicants seek an order that OMI and OMP be deemed to have offered to dispose of all their shares in the company to the applicants and their shareholders,” said Mtonga.
The fund is supported by NIP, which holds 8.5% and Temo Capital, which owns 0.03% shares.
They also want the court to set aside all decisions taken on 17 and 29 December 2021, 14 January, and 1 February by the hospital, where Kashihakumwa and fellow director Mbinganyi Siwawa were relieved of their duties, set aside.
Mtonga said the court must also order the hospital to appoint an impartial auditor to determine the value of the shares.
OMI and OMP have refuted Mtonga’s assertions stating there is no truth to them. Matthias Braune, who is now running the hospital, denied that there is a change in control of either OMI, OMP, or the hospital.
Furthermore, he said the directors who took the decisions on the said dates acted independently and in the best interest of the shareholders they represent.
He said a turnaround strategy has since been instituted at the hospital.
“Ongwediva Medipark had previously been run and managed by Dr Tshali Iithete who had run the business of the hospital as though it was his family business. Money was spent without authorisation and without consent and the hospital was on the brink of insolvency,” said Braune.
He has asked the court to dismiss the application. They are yet to get a hearing date.
Dr Iithete’s suit
The hospital is currently waiting for mediation to try and resolve a lawsuit filed by Dr Iithete over unpaid services.
Iithete claims the hospital breached their service agreement, so he is entitled to N$2.3 million for services his employees rendered to the hospital between 2018 and 2022.
In turn, the hospital wants Dr Iithete to pay back more than N$1.1 million he allegedly owes the hospital for unauthorised expenditures between March 2014 and January 2020.
Mediation will start on 12 October.
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