Court name
High Court
Case number
234 of 2012
Title

CEO of Namibia Financial Institutions Supervisory Authority v Fis Life Assurance Company Ltd and Others (234 of 2012) [2012] NAHC 296 (07 November 2012);

Media neutral citation
[2012] NAHC 296
Coram
Smuts J





IN THE HIGH COURT OF NAMIBIA







REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








JUDGMENT



Case no: A 234/2012








In the matter between:








THE CHIEF EXECUTIVE OFFICER OF
NAMIBIA ..........................1ST
APPLICANT



FINANCIAL INSTITUTIONS SUPERVISORY



AUTHORITY
....................................................................................2ND
APPLICANT



and



FIS LIFE ASSURANCE COMPANY LTD
...................................
1ST RESPONDENT



THE MINISTER OF FINANCE
....................................................2ND
RESPONDENT



THE MINISTER OF DEFENCE
..................................................3RD
RESPONDENT



THE MINISTER OF SAFETY AND SECURITY
..........................4TH
RESPONDENT








Neutral citation: The Chief
Executive Officer of Namibia Financial Institutions Supervisory
Authority v FIS Life Assurance Company Ltd (A 234/2012) [2012] NAHCMD
53 (7 November 2012)








Coram: Smuts, J



Heard: 17 October 2012



Delivered: 7 November 2012








Flynote: Application by
Registrar of Long-Term Insurance to place first respondent under
provisional curatorship under s6 of Act 39 of 1984 –
requirements referred to – jurisdictional facts to be
established – opinion held by the Registrar to be reasonable
and rationally held – CEO, Namfisa v Legal Shield 2005 NR 155
(HC) qualified.








ORDER








1. That the full and proper compliance
with the Rules relating to service and time limits as set out in Rule
6(12) of the Rules of this Honourable Court, by reason of the urgency
of the matter, is condoned



2. That the long-term insurance
business of FIS Life Assurance Company Ltd (hereinafter referred to
as “the business”) is placed provisionally under
curatorship in accordance with the provisions of section 6 of the
Financial Institutions (Investment of Funds) Act, No. 39 of 1984
(“the Act”), and in accordance with the provisions of
this order.



3. That Michael Leech is appointed
curator (“the curator”) of the business of FIS Life
Assurance Company Ltd (hereinafter referred to as “the
company”) and, as such, is absolved from furnishing security.



4. That the business is placed
provisionally under the curatorship and management, subject to the
supervision of this court, of the curator, and any other person
(including but not limited to the directors) now vested with the
management of the business be divested thereof.



5. That pending the return day of the
order granted herein, all actions, proceedings, the execution of all
writs, summonses and other processes against the company, are stayed
and be not instituted or proceeded with without leave of the court.



6. That the curator is, pending the
return day referred to in paragraph 7 hereunder;



6.1 authorised to take immediate
control of, manage and investigate, the business and operations of
and concerning the company, together with all assets and interests
relating to such business, such authority to be exercised subject to
the control of this court in accordance with the provisions of s6 (5)
of the Act, and with all such rights and obligations pertaining
thereto;



6.2 vested with all executive powers
with would ordinarily be vested in, and exercisable by, the board of
directors or members of the company, whether by law or in terms of
its articles of association, and the present directors, members or
managers of the company shall be divested of all such powers;



6.3 directed to give consideration to
the best interests of the policyholders and other creditors of the
company;



6.4 directed to exercise the powers
vested in him with a view to conserving the business and not without
the leave of the court to alienate or dispose of any of the property
of the company or the business provided that the curator may in his
discretion suspend the issuing of new insurance policies during the
curatorship. The curator, however, shall be entitled to sell movable
assets in his discretion with the approval of the applicants in order
to defray day-to-day running expenses and in order to keep the
business of the company active pending his report to the court on the
return day;



6.5 directed to take custody of the
cash, cha investments, stocks, shares and other securiti8es held by
the company or any entity directly or indirectly controlled by the
company, and of other property or effects belonging to or held by the
company or any entity directly or indirectly controlled by the
company;



6.6 authorised to incur such
reasonable expenses and costs as may be necessary or expedient for
the curatorship and control of the business and operations of the
company, and to pay same from assets held or under the control of the
company;



6.7 authorised to engage or dismiss or
negotiate the severance and retrenchment packages with staff members
and incur office expenses for the purpose of exercising this
curatorship;



6.8 permitted to engage such
assistance of a legal, accounting, administrative, actuarial or other
professional nature as he may reasonably deem necessary for the
performance of his duties in terms of this order of court, and to
defray reasonable charges and expenses thus incurred from the assets
held or under the control of the company;



6.9 authorised to institute or
prosecute any legal proceedings on behalf of the company and to
defend any actions against the company;



6.10 authorised to invest such funds
as are not required for the immediate purpose of the business, with a
registered bank;



6.11 authorised to operate existing
banking accounts of the company and of its subsidiary companies, and
to open and operate any new banking accounts for the purposes of the
curatorship;



6.12 directed and authorised, at any
time during his term of office, to report to the applicants should he
deem it necessary or expedient that application should be made to
this court for the extension of his powers to any other company
(including any subsidiary) affiliated to or associated with the
company or for the liquidation of the company;



6.13 authorised to claim all costs,
charges and other expenditure reasonably required by the curator in
the execution of his duties in terms of this order as administration
costs in the liquidation of the company, in the event of liquidation
ensuing;



6.14 authorised to pay the applicants’
costs as provided for in paragraph 7.2 below;



7. That the rule nisi is hereby issued
calling upon the company to show cause to this honourable court on 16
January 2013 at 11h00 why:



7.1 the appointment of the curator
ordered in paragraphs 2, 3 and 4 above should not be confirmed, with
the powers and duties set out in paragraph 6 above;



7.2 the costs of these proceedings, as
between attorney and client, as well as the costs of the curator and
the cost of inspection conducted into the affairs of the company in
terms of the inspection of Financial Institutions Act 38 of 1984,
should not be payable by the company, alternatively, from the assets
held by or under the control of the company;



8. That the rule nisi is hereby issued
calling upon all interested parties to show cause to this honourable
court on a date to be arranged with the Registrar why an order should
not be granted that, whilst the curatorship exists, all actions,
proceedings, the execution of all writs, summonses and other
processes against the company is stayed and not instituted or
proceeded with without the leave of the court.



9. In the event of the company or any
interested party wishing to appear on the return date mentioned in
paragraph 7 and 8, notice of such intention to oppose the
confirmation of the aforesaid rule nisi, together with an affidavit
in support of such opposition, shall be lodged with the Registrar of
this Honourable Court and copies thereof served on the applicants’
legal practitioners of record, Shikongo Law Chambers, Gosp Office
Windhoek, by not later than a date to be determined by this
Honourable Court.



10. That the curator is directed:



10.1 to compile a statement reflecting
the overall financial position of the company, with specific
reference to its assets and liabilities and to any business conducted
by the company or any of its subsidiaries, affiliated, or associated
companies, or any trusts in which the companies’ directors or
management have an interest, involving money received from
policyholders and other parties in connection with insurance business
and to report thereon to this Honourable Court on the return date;



10.2 to report this Honourable Court
on any irregularities committed by the company, its directors,
management or auditors and the contravention of any laws in the
conduct of its business;



10.3 to recommend to the Honourable
Court on the return day what further steps should be taken and by
whom, in order to safeguard the interests of policyholders and other
creditors of the company;



10.4 to furnish the applicants with
progress reports on the curatorship on a monthly basis;



10.5 to report to the Honourable Court
on the return day regarding the viability of the business and any
other entity in which the company has a direct interest, and the ways
to ensure the survival of the business in particular with regard to
the protection of the interests of policyholders;



10.6 should the curator suggest that
the business or the company be placed in liquidation, to make his
suggestions with regard to the number of persons, their experience
and training to be appointed as liquidators of the business or the
company; and



10.7 should the curator propose that
the rule be confirmed and his provisional appointment be made final,
to give an indication of the term required for completion of the
curatorship.



11. That the curator shall be entitled
to reasonable remuneration based on an hourly rate in accordance with
the norms of his profession, such remuneration to be paid for the
assets of or under the control of the business or the company on a
preferential basis.



12. That this order as well as a copy
of the application shall be served on the company and publication of
the order shall be effected in one issue of the Namibian newspaper
and in one issue of the Government Gazette.










JUDGMENT





SMUTS, J









  1. The first applicant is the Chief
    Executive Officer (“CEO”) of the Namibia Financial
    Institutions Supervisory Authority (“Namfisa”). Namfisa
    is established under section 5 of its empowering legislation, the
    Namibia Financial Institutions Supervisory Authority Act, 3 of 2001
    (the “Namfisa Act”). Namfisa is the second applicant in
    this application. By virtue of the first applicant’s position
    as Chief Executive Officer of Namfisa, he also serves as a registrar
    of various financial institutions as defined in s 1 of the Namfisa
    Act, read together with Schedule 2 of that Act. Of relevance for the
    present proceedings is his position as Registrar of Long-Term
    Insurance, a position which he occupies under section 4 of the
    Long-Term Insurance Act, 5 of 1998 (“the Long-Term Insurance
    Act”).










  1. The applicants approached this Court
    on an ex parte basis as a matter of urgency to place the
    first respondent under curatorship. The latter is a public company
    and a registered insurer under the Long-Term Insurance Act. It is
    subject to supervision by Namfisa and by the first applicant by
    virtue of his capacity as a Registrar of Long-Term Insurance.










  1. The applicants’ application to
    place the first respondent under curatorship was brought under s 6
    of the Financial Institutions (Investment of Funds) Act, 39 of 1984
    (“the Investment Act”). The application also seeks
    extensive ancillary relief related to the placing of the first
    respondent under curatorship.










  1. The provisions of s 6(1) of the
    Investment Act are thus pertinent to these proceedings. That
    sub-section provides, under the heading “Appointment of
    Curator” as follows:









(1)
If as a result of an inspection of the affairs of a financial
institution under any law, the registrar of a financial institution
is of the opinion that it is for any reason desirable to do so, he
may without notice to the financial institution concerned apply to a
division of the Supreme Court having jurisdiction (hereafter referred
as ‘the Court’) for the appointment of a curator to take
control of and to manage the whole or any part of the business of
that financial institution.”









  1. The applicants would appear to have
    approached this Court on the basis that s 6 entitled them to apply
    on an ex parte basis without the need to set out facts to
    justify the granting of an order of this nature without notice to
    the financial institution concerned. The first applicant stated in
    his affidavit that the wording of s 6 enabled the application to be
    brought ex parte and that opposition would then only arise on
    the return date or in an application for the anticipation of the
    return date and that applications of this nature would not require
    service upon the financial institution in question. When the matter
    was originally set down on this basis, I enquired from Mr Corbett,
    representing the applicants, whether he would want to address me on
    whether the facts raised in the papers justified an approach to this
    Court on an ex parte basis or whether s 6 entitled the
    applicants to do so without the need to raise such facts. In the
    meantime, the first respondent became aware of the application and
    the applicants agreed to serve the papers upon it. It was then no
    longer necessary for Mr Corbett to address the Court on those issues
    as there was then service of the application upon the respondents.
    It was also no longer necessary for me to deal with the issue I
    raised with Mr Corbett. As I have not had the benefit of argument on
    the matter and as it is no longer pertinent, I refrain from dealing
    with the issue as to whether s6 would entitle the applicants to
    bring an application of this nature on an ex parte basis
    without the need to set out facts to justify hearing the application
    without notice or service upon a respondent in the face of parties’
    right to a fair trial entrenched by art 12 of the Constitution. The
    matter then became postponed to 5 October 2012 for service on the
    respondents.










  1. On 5 October 2012, the application
    was further postponed by agreement to 17 October 2012 with the first
    respondent being required to file answering papers on or before 12
    October 2012.










  1. The first respondent did not meet
    this deadline but filed an answering affidavit on the day before the
    hearing, 16 October 2012.










  1. Before dealing with what was stated
    in the answering affidavit, I first briefly refer to the basis for
    the relief set out in the founding papers which span several
    hundreds of pages. The Registrar initiated three investigations of
    the first respondent. These were conducted by the accounting firm
    PricewaterhouseCoopers in 2005, 2010 and 2011. The third
    investigation termed “the final inspection report” was
    completed on 11 November 2011. The first applicant also relies on
    several letters and directives addressed by Namfisa to the first
    respondent raising issues of non-compliance with legislation and
    with directives, requiring remedial action and information. A total
    seventeen such letters are referred to. There is also reference to
    meetings between Namfisa staff and the directors and management of
    the first respondent and a notice of 25 November 2011 of an
    intention to cancel the first respondent’s registration as a
    funeral insurer in terms s 17(11) of the Long-Term Insurance Act.










  1. There is ample evidence that several
    of the notices and letters addressed to the first respondent met
    with a hostile and at times obstructive attitude which included
    unsupported allegations of corruption levelled against Namfisa. The
    applicants also referred to a general failure of good corporate
    governance on the part of the first respondent with reference to
    internal disputes which resulted in two factions of shareholders and
    directors being at loggerheads with each other for an extended
    period. There were also serious allegations of fraud levelled by one
    faction against the other. It was also raised that the composition
    of the board was also in contravention of s 16 of the Long-Term
    Insurance Act (by reason of the fact that the majority of members
    were not Namibian citizens). There was also confusion concerning the
    number of shares issued in the first respondent, the failure on its
    part to relocate its offices as directed by the Registrar and the
    continued interference in its operations by a certain Mr I Edward
    despite not being the principal officer and the related failure to
    appoint a fit and proper principal officer. There was also the
    failure to furnish Namfisa with financial statements and quarterly
    reports and finally misrepresentations made by the first respondent
    concerning the nature of business for which it is licensed.










  1. On the strength of these
    contraventions of statutory provisions and directives of Namfisa as
    well as instances of very poor corporate governance - most of which
    were dealt with in the inspection reports, the first applicant
    expressed his opinion in the founding affidavit that it is desirable
    that a provisional curator be appointed to take control of and
    manage the business of the first respondent so that the necessary
    remedial action could be taken with a view to establishing a proper
    management system so that it can continue to operate in the
    insurance industry. In expressing this view, the first applicant
    acknowledged that placing the first respondent under curatorship
    would have far-reaching effects. But he considered that it was
    warranted in order to protect the interest of third parties, being
    primarily the policyholders, to the greatest extent possible. The
    inspection reports themselves set out a litany of contraventions of
    legislative provisions and Namfisa directives as well as the
    obstruction on the part of the first respondent of Namfisa in
    performing its important statutory mandate. The inspection reports
    had also resulted in remedial action being called for by the
    Registrar which had not been met.










  1. Following the final inspection report
    in November 2011, the Registrar gave notice of his intention to
    cancel the registration of the first respondent as a funeral insurer
    in terms of s 17(11) of the Long-Term Insurance Act – premised
    upon contraventions of the failure to comply with the provisions of
    that Act. There then followed meetings and correspondence between
    each faction and the regulator with, each seeking to deal with the
    regulator and in the process besmirching the other. The Registrar
    permitted an extension to furnish representations concerning the
    cancellation of the first respondent’s registration. After
    receiving the representations from one of the factions in response
    to this issue, Namfisa requested further information from the first
    respondent. Further correspondence was exchanged between Namfisa and
    the two separate factions as well as some meetings held.










  1. The first applicant reports in his
    founding affidavit that these meetings culminated in the first
    respondent submitting a progress report on 19 July 2012 in respect
    of the notice of intention to cancel its registration, referring to
    certain steps which had been taken with regard to issues raised by
    the regulator. The regulator acknowledged receipt of a letter of 31
    July 2012 and informed the first respondent that it would need to
    revert in due course.










  1. The first applicant concluded his
    founding affidavit by referring to the continued non-compliance on
    the part of the first respondent. Reference is made to a general
    lack of co-operation on its part and to the internal disputes which
    had plagued its operations, particularly in 2012. Reference is also
    made to the composition of the board not being in compliance with
    the Long-Term Insurance Act, the shareholding of the first
    respondent remaining unclarified and in dispute, the statement by
    the first respondent that it would relocate its offices in March
    2012 but which had not occurred over the ensuing months, the
    continued interference of Mr Edward in its operations, the failure
    to provide financial statements which should have been concluded by
    31 August 2012. The first applicant also referred to the serious
    allegations of fraud levelled by the lawyers representing one of the
    factions against members of the other faction. The issue of the
    principal officer also remained unresolved. Questions were also
    raised concerning the management systems of the first respondent and
    misrepresentations concerning the nature of its insurance business.










  1. As is clear from the first
    applicant’s affidavit and there is a wealth of documentation
    raised to support these serious allegations of non-compliance, a
    comprehensive failure of proper corporate governance and a failure
    to comply with Namfisa’s directives.










  1. In the answering affidavit provided
    by the first respondent on the day before the hearing, these serious
    allegations were not addressed in any detail except to state that a
    significant contributing cause for them had been the internal
    disputes which had characterised its operations since late year and
    which had culminated in an urgent application launched around the
    time of this application for curatorship. The answering affidavit
    reported that the internal disputes had been settled between the two
    factions and that a number of remedial steps had been taken by a
    newly constituted board and that the principal officer previously
    contemplated, Mr P Carlson, had been agreed upon and would conduct
    the operations with immediate effect. These and other issues were
    set out in detail in a letter by Metcalfe Attorneys to Namfisa on 9
    October 2012. This letter was attached to the affidavit together
    with the response to it which had only been received on 15 October
    2012. A reply to that response was then sent to Namfisa’s
    legal practitioners on the following day. This correspondence is
    attached to the answering affidavit.










  1. In the answering affidavit, it is in
    essence contended that at the heart of several of the concerns
    raised by the first applicant about the first respondent, was an
    underlying dispute between the shareholders and various directors of
    the first respondent, chronicled in some detail in the applicants’
    founding affidavit. The statement was then made in the answering
    affidavit that those disputes have become settled and that the
    concerns raised by the applicants have been addressed. The letter of
    9 October 2012 dealing with these issues was attached and confirmed
    under oath. In particular, it was stated on behalf of the first
    respondent that the various internal disputes had been settled and
    addressed during the preceding week and that advice was received on
    practical solutions and proposals being put in place in order to
    address the concerns of the applicant. These resulted in










  • a new board of directors being
    appointed with the majority being Namibian citizens and none of them
    being shareholders;



  • the appointment of Mr Carlson was
    confirmed as principal officer of the first respondent, subject to
    Namfisa’s approval;



  • a former Chief Executive Officer of
    Namfisa, Mr Ritter, was to be appointed as the first respondent’s
    operations manager;



  • a forensic audit would be conducted
    on the FIS Minors Trust by a firm of accountants, Deloittes;



  • that same firm together with Garbodo
    would be appointed as forensic auditors in respect of the affairs of
    FIS Life and to report to the new board;



  • all unclaimed beneficiary funds would
    be paid to the Master of the High Court, subject to Namfisa’s
    directives;



  • all outstanding management reports
    would be provided to Namfisa by no later than 16 November 2012;



  • no shareholder of the first
    respondent would in any manner be involved with the day to day
    operations of the first respondent;



  • the accounting firms PFK and Grand
    Namibia would be appointed jointly as auditors of the first
    respondent to prepare, complete and provide Namfisa with the
    outstanding financial statements;



  • a certain Mr Nestory to whom the
    applicants had objected, would no longer be in the employ of the
    first respondent in any capacity;



  • a public apology would be issued to
    Namfisa in respect of embarrassment occasion as a result of any
    misinformation;



  • the outstanding financial statements
    for 2012 would be provided to Namfisa as soon as practically
    possible;



  • all civil and criminal litigious
    disputes between the shareholders and directors would be withdrawn;



  • Messrs Carlson and Ritter, subject to
    Namfisa’s approval, would be authorised to sign cheques
    jointly on the claims account and administration account of the
    first respondent;



  • Mr Nezar and Mr Metcalfe would be
    authorised to sign all other payments and documents apart from those
    already referred to;



  • the first respondent would pursue its
    pending application for a full licence with the second application
    in respect of disability insurance;



  • a meeting would be convened between
    Namfisa and first respondent together with the third and fourth
    respondents before 31 October 2012 to resolve the issue of multiple
    payments to beneficiaries in respect of funeral insurance;



  • the applicant was relocating its
    principal place of business to another specified address;



  • and that a new firm of attorneys was
    appointed as its legal practitioners of record for the first
    respondent.










  1. The first respondent also tendered
    the applicants’ costs in launching the curatorship
    application.










  1. It was further pointed out that the
    first respondent has a successful business and would comply with the
    directives of Namfisa and would comply with the legislation
    governing its operations. It was submitted that it would be highly
    prejudicial to the first respondent to be placed under curatorship
    and leave was sought to file further affidavits to address issues
    raised by the applicants if required and for a postponement of the
    curatorship application for the purposes of implementing the
    measures specified in this affidavit and for them to be verified.
    The issues themselves were spelt out further in correspondence
    exchanged between the parties and curriculum vitae was attached in
    respect of
    Mr Carlson from which it appears that he is a duly
    qualified chartered accountant with certain further qualifications.










  1. The first respondent’s
    application to postpone the proceedings for the purposes of
    affording it the opportunity to implement the proposals and address
    aspects of non-compliance with the directives of the applicants was
    however opposed on behalf of the applicants in an affidavit also
    deposed to on 16 October 2012. This affidavit was deposed to by the
    Acting Chief Executive Officer of Namfisa with reference to the same
    correspondence which had been exchanged between Namfisa and legal
    practitioners representing the first respondent attached to both
    affidavits, save for the first respondent’s reply of 16
    October 2012. The Acting Chief Executive Officer referred to and
    confirmed the letter of 15 October 2012 sent in response to the
    first respondent’s legal practitioner’s letter of 9
    October 2012 and dealing with its proposals. The Acting Chief
    Executive Officer pointed out that the letter of 15 October 2012
    accorded with the applicants’ instructions and, for the
    reasons specified in that letter the applicants would not accept the
    proposals contained in the letter of 9 October 2012 and would move
    for the curatorship of the first respondent and the further
    ancillary relief set out in the notice of motion.










  1. In order to deal with this
    application, it is necessary to refer to what is stated in that
    letter in response to the proposals. In response to the appointment
    of a new board, the applicants expressed their “serious
    reservations about the legitimacy of the board”. Despite this
    statement, the reservations would rather relate to documentation
    showing compliance with the formalities of the Companies Act in
    calling for and convening a shareholders’ meeting and minutes
    reflecting the resolutions and indicating who had been in attendance
    at that meeting. The applicants referred to the long-standing
    dispute that had existed between the shareholders and required these
    issues to be fully addressed in order for the applicants to assess
    the position.










  1. Whilst it is entirely understandable
    for the applicants to require proof of compliance with statutory
    provisions with regard to the appointment of directors and to be
    satisfied that this issue had been resolved because of a
    long-standing dispute, these issues would in my view in the face of
    an affidavit as well as the correspondence in question hardly give
    rise to what were termed “serious reservations of the
    legitimacy” but rather for the regulator to be satisfied that
    the directors had been duly appointed.










  1. The applicants also were not
    satisfied that the shareholding issues between shareholders would be
    addressed internally given the history of animosity. The applicants
    also took issue with the statement in the letter concerning the
    appointment of Mr Carlson which had stated that he would in “all
    probability” be appointed subject to the applicants’
    confirmation. These are also aspects which in my view could be
    clarified between the first respondent and the applicants.










  1. With regard to certain of the other
    issues raised by the applicants, the undertakings given by the first
    respondent were rightly questioned because of the failure to provide
    a timeframe. The statement that no shareholder would be involved was
    questioned by the applicants “as less than convincing”
    because of the continuous involvement of shareholders previously.
    The undertaking to appoint auditors to attend to the financial
    statements for 2012 was also queried because again no date was given
    when the auditors would be appointed. The withdrawing of civil and
    criminal litigious internal disputes was also queried because no
    dates were given. The statement that an application for a full
    licence for disability insurance was pending was pointed out to be a
    mis-statement of the factual position as the application which had
    long since previously been provided was defective and had not as yet
    been re-submitted.










  1. As to the proposal to convene a
    meeting between Namfisa and the Ministries in question, it was
    pointed out that the applicants had no confidence that the matter
    would be resolved and that a “complete re-formulation”
    of the manner of payment of benefits would need to be addressed. It
    was also pointed out by the applicants that no date was given for
    the relocation of offices.










  1. Most importantly for present
    purposes, it was further stated that the applicants would not agree
    to withdrawing the curatorship application or even agree to its
    postponement and that the issues raised in the letter could be
    verified and addressed by the curator after his appointment.










  1. When the matter was called in Court
    on 17 October 2012, I enquired from Mr Corbett whether the
    applicants would still wish to proceed with an order for curatorship
    in view of the affidavit made on behalf of the first respondent and
    the application for a postponement in order to address issues raised
    by the undertakings given and proposals made in the correspondence
    and confirmed in the affidavit. Mr Corbett stated that the
    applicants nonetheless persisted with the application for
    curatorship.










  1. Mr Heathcote SC, who together with Mr
    van Vuuren, appeared for the first respondent, proposed that the
    application should be postponed to afford the first respondent the
    opportunity to address outstanding issues. Mr Corbett however
    resisted this application on behalf of the applicants. He referred
    to the first respondent’s history of non-compliance, spanning
    some 5 years and pointed out that the regulator, in the
    supplementary affidavit, had not accepted the proposal to postpone
    the application but had rather sought to persist with the
    application to place the first respondent under curatorship. He
    pointed out that the regulator did not have sufficient confidence in
    the undertakings given as had been set out in the letter of 15
    October 2012 and referred to the fact that the first respondent
    continued to provide disability insurance without being registered
    to do so and that this aspect had not been properly addressed in the
    correspondence or in the further affidavit filed on behalf of the
    first respondent. He pointed out that, after the defective
    application had been referred back to the first respondent, there
    had been no application for registration for this form of insurance
    on its part and that this issue had not been addressed in the letter
    of
    9 October 2012. Nor in the days since or in the supplementary
    affidavit.
    Mr Heathcote responded by stating that the first
    respondent would file the necessary application forthwith and on the
    day of hearing.










  1. Mr Corbett however still moved for an
    order in terms of the notice of motion to place the first respondent
    under curatorship. He submitted that the requisites of s 6 had been
    met, given manifold non-compliance with various statutory provisions
    as set out in the founding affidavit and supported by the vast
    number of annexures to it. He submitted that there had been an
    inspection of the affairs of the first respondent and that the
    Registrar had in the founding affidavit expressed the opinion that
    it is desirable to place the first respondent under curatorship for
    the reasons set out in the founding affidavit.










  1. Mr Corbett relied upon a judgment of
    this Court in the interpretation of the provisions of s 6, CEO,
    Namibia Financial Institutions Authority v Legal Shield.
    1
    In that matter, Manyarara AJ had accepted a submission on the nature
    of the enquiry to be held under s 6 in these terms:









The
applicant submits that once the Court has found the jurisdictional
facts as prescribed by s 6 of the Financial Institutions (Investment
of Funds) Act 39 of 1984 to apply, i.e. that the Registrar has for
any reason as a result of an inspection into the affairs of the
respondent formed an opinion that it is desirable to place the
respondent under curatorship, and that such opinion has been reached
on a reasonable and rational basis, then the Court must grant an
order placing the respondent under provisional curatorship, unless
there are exceptional circumstances why this should not be done. Once
the jurisdictional grounds entitling the Registrar to approach the
Court are found to exist, the scope for the exercise of a discretion
by the Court to refuse to grant an order placing the respondent under
provisional curatorship is limited. It is clear that the test
envisaged by the Legislature for the provisional appointment of a
curator in terms of s 6(2) is different to that laid down in s 6(4)
when the Court is asked to confirm the appointment of the curator. At
the stage of provisional appointment of a curator the jurisdictional
requirements are those set out in s 6(1), whereas when a confirmation
of the appointment is sought, the jurisdictional requirement is that
''the Court is satisfied that it is desirable to do so''. No
satisfaction of the Court is required in terms of s 6(2), the
question being whether the Registrar is of the opinion ''that it is
for any reason desirable to do so''
.”




  1. Despite approving of this submission
    premised upon the opinion being reached on a rational and reasonable
    basis, Manyarara AJ, in dealing with the requisite opinion, however
    in essence held that the court could not interfere with the decision
    to bring the application even if it were unreasonable. He did so by
    stating the following:









In
the matter of North-west Townships (Pty) Ltd v Administrator
Transvaal and Another 1975 (4) SA 1 (T) the Court, with reference to
provisions in a statute that 'wherever the Administrator is satisfied
that it is desirable to do so', held the following at 8C-F:








'It
is well settled that when, by statute, a public official has been
vested with jurisdiction to decide a matter affecting members of the
public in the light of his own opinion of the relevant facts, or in
the exercise of his own discretion, a Court is not entitled to
interfere with that decision merely because it considers it to be
wrong, or even if, in its view, the decision was an unreasonable one.








Of
the many cases which discuss and apply the rules of administrative
law relating to the right of the Courts to overrule quasi-judicial or
administrative decisions, a number were cited to us. I do not think,
however, that I need go beyond the terms in which the relevant
principle was formulated by Stratford JA in Union Government v Union
Steel Corporation (South Africa) Ltd 1928 AD 220 at 237, a
formulation which has been reiterated on many occasions since. A
fairly recent application of it by the Appellate Division is to be
found in The Administrator Transvaal and the First Investments (Pty)
Ltd v Johannesburg City Council 1971 (1) SA 56 (A) at 80. What the
learned Judge of appeal said was that interference on the ground of
unreasonableness was justified only if the unreasonableness was so
gross that there could be inferred from it, mala fides or ulterior
motive, or a failure by the person vested with the discretion to
apply his mind to the matter.








The
last-mentioned possibility has been held, in other English and South
African cases, to include capriciousness, a failure, on the part of
the person enjoined to make the decision, to appreciate the nature
and limits of the discretion to be exercised, a failure to direct his
thoughts to the relevant data or the relevant principles, reliance on
irrelevant considerations, an arbitrary approach, and an application
of wrong principles.' (Per Colman J.)








I
have set out and considered the relevant facts and issues in this
matter, none of which can be disputed. At the end of my inquiry I
have not found any ground for accusing the applicant of any of the
faults listed in the above passage. In my view, applicant has bent
over backwards to accommodate the respondent, to no avail.








As
Mr Maritz submitted:








'Applying
the test as laid down in the Hurley case (Minister of Law and Order v
Hurley and Another 1986 (3) SA 568 (A) at 578F-G) to the present
matter, the question for the decision of the Court is accordingly
whether the applicant had reasonable grounds for his opinion ''that
it is desirable to appoint a curator to take control of and to manage
the business of the respondent''. Furthermore, the Court is entitled
and obliged to decide the factual question whether there was an
inspection of the affairs of the respondent and whether the opinion
formed by the applicant was a result of such inspection. If these
questions are answered in the affirmative, as it is submitted they
should be, the Court is not entitled to disregard the Registrar's
opinion merely because the Court itself might have come to a
different opinion on the same fact. Therefore, should the Court find
that an inspection was conducted into the affairs of the respondent
(which is common cause) and that as a result thereof the Registrar
formed the opinion which he did (which is common cause) and that the
Registrar could reasonably and rationally reach the opinion he did as
a result of the inspection which was conducted, then the Court should
grant the order for the appointment of a provisional curator and its
discretion to refuse to do so is limited.'








In
case, as in Northwest Townships (Pty) Ltd v Administrator, Transvaal
and Another 1975 (2) SA 288 (W) the respondent placed emphasis on the
word 'may' in s 6 and submitted that, even if all the jurisdictional
facts are established, the Court nevertheless has a discretion to
refuse to appoint a provisional curator.








But,
as we have seen, this argument was rejected on appeal, reported at
1975 (4) SA 1 (T). The submission is unassailable and must be
upheld.”








[31] As is correctly pointed out in
subsequent written submissions by counsel for the first respondent,
the Manyarara AJ’s reading of both the a quo judgment and that
of the appeal in the Northwest Townships matter was, with respect
incorrect. The argument characterised as rejected was, with respect,
wrongly so described. On the contrary, the court of appeal said as
follows:



It
cannot be said, therefore, that the “may” in sec. 4(3)
means “shall”, either as a matter of interpretation, or
necessarily and invariably as a matter of practical application. The
administrator, even when what I have called the jurisdictional facts
exist (as in my judgment they do in the present case) has a true
discretion to impose or not to impose the condition provided for in
the sub-section. Almost invariably his duty will be to exercise his
discretion in favour of the objector who will suffer financial
prejudice in consequence of the interference with his rights. But
there may be special circumstances justifying a departure from that
norm. I would stress the view that they would be unusual
circumstances of great cogency. And, of course, it would be necessary
that the objector’s attention be directed to them, and to the
possible reliance upon them as a basis for the denial of
compensation, in order that he might, if he wished, produce evidence
and make representations in that regard.”








[32] Despite adopting both passages of
the quoted submissions which would indicate that the opinion of the
Registrar should be reasonably and rationally held as an objectively
justifiable fact, Manyarara AJ instead adopted his own with respect,
imperfect understanding of the Northwest Townships decision
and proceeded to rule out a discretion upon the court to refuse to
appoint a curator and effectively considering that the decision to
bring the application as one which would not be reviewable on the
grounds of unreasonableness and by implication approaching the
jurisdictional fact of the required opinion being one which need not
need to be reasonably or rationally held. I enquired from counsel
whether the approach the court in Legal Shield was correct. I
invited their submissions on the issue as to whether the opinion of
the Registrar would need to be an objectively justifiable fact
(tested against reasonableness and rationality) or whether the Court
merely needs to be satisfied that he has reached such an opinion
following an inspection and whether the Court would retain any
discretion as to thus whether or not to place the first respondent
under curatorship. Counsel sought and were granted leave to file such
further written argument by 26 October 2012.








[33] Both sets of counsel, filed heads
of argument on the issue on 26 and 29 October 2012 respectively. Mr
Corbett submitted, with reference to authority, that the opinion in
question involves the exercise of a subjective discretion which the
Court would not be entitled to query. He relied upon Minister of
Law and Order v Hurley and another
2
and further submitted that the Registrar, in the context of the words
employed in the statute, has a free discretion with reference to
Shifidi v Administrator General for SWA and others. 3
He further submitted that the use of the term “for any reason”
in the context of whether it is desirable to do so would vest in the
Registrar a free discretion as opposed to where a statute is
formulated on the basis that the repository of a power should have
“reason to believe” in order to form an opinion. Mr
Corbett however conceded that, following the adoption of the
Constitution and Article 18 in particular, objective justifiability
would be read into s 6(1), despite the subjective free discretion he
contended for as being bestowed upon the Registrar. In my view this
concession is correctly made. I would however consider that it should
be differently stated. Mr Heathcote, as I have said, submitted that
the appeal in Northwest Townships was upheld upon a different
basis than that referred to by Manyarara AJ. He submitted that this
court retains a discretion whether or not to place an institution
under curatorship.








[34] Manyarara, AJ with reference to
the Northwest Townships decision, would appear to have accepted that
all the regulator would need to establish in an application would be
the jurisdictional facts of an inspection and that his opinion (that
it was desirable to place an institution under curatorship) was
formed as a result of that inspection. He also found, relying upon
Northwest Townships that it would not be open to this court to
interfere with the regulator’s approach if a court were to
consider it to be unreasonable. Quite apart from the misreading of
the decision in question, I respectfully differ that it is even
apposite. Whilst Northwest Townships would in my view, with respect,
on the facts before it, appear to correctly reflect the state of the
common law at the time, it would seem to me that the reliance upon it
in the context of a s6 (1) enquiry is, with all due respect unsound
and misplaced. That approach would, after the advent of Art 18 of the
Constitution, give way to the need for decision making by
administrative officials to be fair and reasonable. Although this
requirement would appear to be implicit in counsel’s
submissions correctly approved of by Manyarara, AJ in referring to
the need for the opinion to have a rational and reasonable basis,
Manyarara, AJ however appeared to approach the matter on the basis
that the opinion of the Registrar would not be objectively
justifiable on the basis of reasonableness or being rational.








[35] To that extent, I respectfully
disagree with his approach which would in any event appear to be
contradicted by his approval of quoted portions if counsel’s
submissions where counsel correctly appeared to accept that the court
would be entitled to consider whether the opinion was rationally and
reasonably held.








[36] The reference to the regulator
having a “free discretion” upon reliance upon the Shifidi
matter would also not in my view be apt or helpful in view of Art 18
adopted subsequent to it. The lucid and careful analysis in Shifidi,
with respect, also correctly reflected the state of the common law at
that time but the notion of a free discretion in the sense employed
there would also in my view now give way to the requirement of
reasonableness posited by Art 18.








[37] The opinion held by the Registrar
would thus in my view need to be reasonably and rationally held in
order for that jurisdictional fact to exist. Once this and the other
jurisdictional fact (of the preceding inspection) exist, then the
court would ordinarily grant an application of this nature unless
exceptional circumstances exist which would in the court’s
discretion lead to the refusal of the application. This would accord
with Manyarara, AJ’s adoption of the submission quoted above to
this effect, although not fully reflected in his approach to the
application.








[38] I thus agree with the quoted
portion he adopted to the effect that a court would have a limited
basis to refuse an application once those jurisdictional facts are
found to exist. As was, with respect correctly accepted by Manyarara,
AJ, the enquiry would broaden upon the return date when the court
would need to be satisfied that it is desirable place the
first respondent under curatorship.








[39] It would accordingly seem to me
that at this initial stage a court would be entitled to consider
whether there is a rational and reasonable basis for the opinion so
held by the Registrar before granting the order. As I have indicated,
this was also explicit in the submissions Manyarara AJ but not
reflected in his approach to the application, given the way he relied
upon Northwest Townships. To this extent I respectfully differ with
and qualify the approach of Manyarara, AJ in that matter.








[40] Mr Corbett also referred to a
recent judgment of the South African Supreme Court of Appeal in
Executive Officer, Financial Services Board v Dynamic Wealth Ltd
and others.
4
This matter dealt with the equivalent provision currently applicable
in South Africa. The equivalent provision in the South African
legislation had however undergone a significant change from the
earlier formulation in s6 of the Funds Investment Act. The
legislature in South Africa has provided for a different test in the
current Financial Institutions (Protection of Funds) Act, 28 of 2001.
An application by the regulator for curatorship would need to meet
the requirement of showing good cause in support of such an
application. The Court in the Dynamic Wealth matter, per Wallis JA,
however dealt with the test on the return date when, as in the
Investment Act, a court would need to satisfy itself that good
cause existed, setting the test at that stage in the following
terms:








[4]
The registrar must therefore satisfy the court that there is good
cause to appoint a curator. Reading ss (1) together with ss (4), that
means that the court must be satisfied on the basis of the evidence
placed before it that it is desirable to appoint a curator. Something
is desirable if it is 'worth having, or wishing for'. The court must
assess whether curatorship is required in order to address identified
problems in the business of the financial institution. It assesses
this in the light of the interests of actual or potential investors
in the financial institution, or investors who have entrusted or may
entrust the management of their investments to it. It must determine
whether appointing a curator will address those problems and have
beneficial consequences for investors. It must also consider whether
there are preferable alternatives to resolve the problems. Ultimately
what will constitute good cause in any particular case will depend
upon the facts of that case. I take heed of what Innes CJ said, in
regard to any attempt to define the content of the expression 'good
cause', that: Wallis JA (Harms AP, Van Heerden JA, Malan JA and Petse
AJA concurring)








'In
the nature of things it is hardly possible, and certainly
undesirable, for the court to attempt to do so. No general rule which
the wit of man could devise would be likely to cover all the varying
circumstances which may arise in applications of this nature. We can
only deal with each application on its merits, and decide in each
case whether good cause has been shown.'



The
potentially complex circumstances that may exist in regard to the
operations of a financial institution render it undesirable to try
and define further what will constitute good cause for the grant of
such an order.








……………








[6]
The appointment of curators under s 5(1) may be appropriate even
where the funds under administration are not shown to be at risk.
Take an institution that is unlicensed and not qualified to be
licensed, because those responsible for its management are
disqualified from obtaining a licence. It can hardly matter that it
demonstrates that the funds invested with it are properly segregated
and identified, invested in accordance with the mandates given by
investors and entirely safe. The inability or unwillingness of the
institution to comply with regulatory requirements applicable to
protected funds itself provides a reason for appointing a curator.
Where there is uncertainty whether the funds of investors are at risk
it may be desirable in order to safeguard the interests of investors
to appoint a curator. In argument the example was put of the
registrar being furnished with an adverse report by inspectors where
management disputes the factual contents and conclusions of that
report. Both counsel accepted, and rightly so in my view, that it
might be proper for a curator to be appointed notwithstanding the
dispute. The existence of an adverse report by inspectors after
conducting an inspection under the Inspection Act may of itself
provide legitimate grounds for concern and found an application for
an interim curatorship, even if its conclusions are disputed. When
dealing with the investment of the funds of the public, where
considerable hardship will be suffered by ordinary people if things
go wrong, the registrar cannot be expected to resolve factual
disputes by litigation before obtaining an order appointing a
curator. Provided the court is satisfied that the registrar's
concerns are legitimate and that the appointment of a curator will
assist in resolving those concerns it will ordinarily be appropriate
to grant an order.”








[41] Much of that judgment concerned
the evidential value to be placed upon the preceding inspection
report and the annexures to it with the Court concluding, contrary to
the Court a quo, that the evidence contained in the annexures
was admissible. The Court concluded that the Court a quo could
on the basis of the admissible facts contained in the report decide
for itself whether the conclusions reached by the Registrar, in
support of the criterion of “good cause shown” were
justified.








[42] Although the wording of the
legislation in question is different, it would seem to me that this
should also be the approach of a Court in Namibia on the return date
when satisfying itself that the opinion held by the Registrar,
of it being desirable to place a financial institution under
curatorship, was justified. But it would not be of much assistance to
this stage of the enquiry.








[43] Turning to the facts of this
matter, it is not disputed that inspections were held, culminating in
the final inspection of November 2011. That jurisdictional fact is
established. It would also seem to me that the opinion formed by the
Registrar that, arising from that report and the continued failure
thereafter by the first respondent to address non-compliance with
statutory provisions, directives and good corporate governance, it
would desirable to place the first respondent under curatorship was
reasonably and rationally held at the time the application was
brought.








[44] Did the subsequent developments
outlined in the answering and further affidavits and correspondence
materially alter the position? The answering affidavit states that
the internal dispute between shareholders and directors had, in
essence, caused and compounded several of the instances of
non-compliance with statutory provisions and good corporate
governance, and had now been resolved. This had resulted in very
recent significant decisions taken concerning the management of the
first respondent, not least by finally agreeing upon the appointment
of a qualified principal officer, Mr Carson, who would readily appear
to be a fit and proper person together with another suitably
qualified person in its management. I have already referred to the
undertakings given and a fundamental change in attitude in addressing
the regulator – which was certainly required. But despite this,
the Acting Registrar resisted an application to postpone the
application to demonstrate and show evidence of compliance and to
meet the undertakings.








[45] Had the only questions been the
composition of the board and the appointment of a principal officer,
the Registrar’s position to persist with the application in the
absence of proof of resolutions and the like would not in my view be
reasonable in the context of an application to postpone the
application for that purpose. But there were other aspects of non
compliance not properly addressed in the answering affidavit and in
the correspondence such as the continuing failure to apply for
registration for disability insurance and yet continuing to do such
business in the absence of a licence to do so. That is in my view a
serious matter in the context of the Long Term Insurance Act This
factor coupled with the cumulative effect of other issues where no
time frames had been provided for compliance, would in my view
further tend to show that there was a reasonable and rational basis
to the opinion of the part of the Registrar that it was desirable to
place the first respondent under curatorship, despite the progress
made to address several areas of non-compliance.








[46] It would follow that the
applicants have in my view established the second jurisdictional fact
posited by s6. Even though a clear intention has been expressed to
attend to areas of non-compliance and to seek time to do so,
(together some manifestation of progress in doing so), the Registrar
has established his opinion that it is desirable to place the first
respondent under curatorship in the context of the history of the
matter, the lack of time frames for certain of the action and more
importantly in view of serious non-compliance not addressed. Despite
the progress made, there is insufficient material before me to
exercise my discretion to refuse the application in the face of the
applicants establishing the jurisdictional facts for it.








[47] I accordingly grant the following
order:



1. That the full and proper compliance
with the Rules relating to service and time limits as set out in Rule
6(12) of the Rules of this Honourable Court, by reason of the urgency
of the matter, is condoned



2. That the long-term insurance
business of FIS Life Assurance Company Ltd (hereinafter referred to
as “the business”) is placed provisionally under
curatorship in accordance with the provisions of section 6 of the
Financial Institutions (Investment of Funds) Act, No. 39 of 1984
(“the Act”), and in accordance with the provisions of
this order.



3. That Michael Leech is appointed
curator (“the curator”) of the business of FIS Life
Assurance Company Ltd (hereinafter referred to as “the
company”) and, as such, is absolved from furnishing security.



4. That the business is placed
provisionally under the curatorship and management, subject to the
supervision of this court, of the curator, and any other person
(including but not limited to the directors) now vested with the
management of the business be divested thereof.



5. That pending the return day of the
order granted herein, all actions, proceedings, the execution of all
writs, summonses and other processes against the company, are stayed
and be not instituted or proceeded with without leave of the court.



6. That the curator is, pending the
return day referred to in paragraph 7 hereunder;



6.1 authorised to take immediate
control of, manage and investigate, the business and operations of
and concerning the company, together with all assets and interests
relating to such business, such authority to be exercised subject to
the control of this court in accordance with the provisions of s6 (5)
of the Act, and with all such rights and obligations pertaining
thereto;



6.2 vested with all executive powers
with would ordinarily be vested in, and exercisable by, the board of
directors or members of the company, whether by law or in terms of
its articles of association, and the present directors, members or
managers of the company shall be divested of all such powers;



6.3 directed to give consideration to
the best interests of the policyholders and other creditors of the
company;



6.4 directed to exercise the powers
vested in him with a view to conserving the business and not without
the leave of the court to alienate or dispose of any of the property
of the company or the business provided that the curator may in his
discretion suspend the issuing of new insurance policies during the
curatorship. The curator, however, shall be entitled to sell movable
assets in his discretion with the approval of the applicants in order
to defray day-to-day running expenses and in order to keep the
business of the company active pending his report to the court on the
return day;



6.5 directed to take custody of the
cash, cha investments, stocks, shares and other securiti8es held by
the company or any entity directly or indirectly controlled by the
company, and of other property or effects belonging to or held by the
company or any entity directly or indirectly controlled by the
company;



6.6 authorised to incur such
reasonable expenses and costs as may be necessary or expedient for
the curatorship and control of the business and operations of the
company, and to pay same from assets held or under the control of the
company;



6.7 authorised to engage or dismiss or
negotiate the severance and retrenchment packages with staff members
and incur office expenses for the purpose of exercising this
curatorship;



6.8 permitted to engage such
assistance of a legal, accounting, administrative, actuarial or other
professional nature as he may reasonably deem necessary for the
performance of his duties in terms of this order of court, and to
defray reasonable charges and expenses thus incurred from the assets
held or under the control of the company;



6.9 authorised to institute or
prosecute any legal proceedings on behalf of the company and to
defend any actions against the company;



6.10 authorised to invest such funds
as are not required for the immediate purpose of the business, with a
registered bank;



6.11 authorised to operate existing
banking accounts of the company and of its subsidiary companies, and
to open and operate any new banking accounts for the purposes of the
curatorship;



6.12 directed and authorised, at any
time during his term of office, to report to the applicants should he
deem it necessary or expedient that application should be made to
this court for the extension of his powers to any other company
(including any subsidiary) affiliated to or associated with the
company or for the liquidation of the company;



6.13 authorised to claim all costs,
charges and other expenditure reasonably required by the curator in
the execution of his duties in terms of this order as administration
costs in the liquidation of the company, in the event of liquidation
ensuing;



6.14 authorised to pay the applicants’
costs as provided for in paragraph 7.2 below;



7. That the rule nisi is hereby issued
calling upon the company to show cause to this honourable court pm 16
January 2013 at 11h00 why:



7.1 the appointment of the curator
ordered in paragraphs 2, 3 and 4 above should not be confirmed, with
the powers and duties set out in paragraph 6 above;



7.2 the costs of these proceedings, as
between attorney and client, as well as the costs of the curator and
the cost of inspection conducted into the affairs of the company in
terms of the inspection of Financial Institutions Act 38 of 1984,
should not be payable by the company, alternatively, from the assets
held by or under the control of the company;



8. That the rule nisi is hereby issued
calling upon all interested parties to show cause to this honourable
court on a date to be arranged with the Registrar why an order should
not be granted that, whilst the curatorship exists, all actions,
proceedings, the execution of all writs, summonses and other
processes against the company is stayed and not instituted or
proceeded with without the leave of the court.



9. In the event of the company or any
interested party wishing to appear on the return date mentioned in
paragraph 7 and 8, notice of such intention to oppose the
confirmation of the aforesaid rule nisi, together with an affidavit
in support of such opposition, shall be lodged with the Registrar of
this Honourable Court and copies thereof served on the applicants’
legal practitioners of record, Shikongo Law Chambers, Gosp Office
Windhoek, by not later than a date to be determined by this
Honourable Court.



10. That the curator is directed:



10.1 to compile a statement reflecting
the overall financial position of the company, with specific
reference to its assets and liabilities and to any business conducted
by the company or any of its subsidiaries, affiliated, or associated
companies, or any trusts in which the companies’ directors or
management have an a=interest, involving money received from
policyholders and other parties in connection with insurance business
and to report thereon to this Honourable Court on the return date;



10.2 to report this Honourable Court
on any irregularities committed by the company, its directors,
management or auditors and the contravention of any laws in the
conduct of its business;



10.3 to recommend to the Honourable
Court on the return day what further steps should be taken and by
whom, in order to safeguard the interests of policyholders and other
creditors of the company;



10.4 to furnish the applicants with
progress reports on the curatorship on a monthly basis;



10.5 to report to the Honourable Court
on the return day regarding the viability of the business and any
other entity in which the company has a direct interest, and the ways
to ensure the survival of the business in particular with regard to
the protection of the interests of policyholders;



10.6 should the curator suggest that
the business or the company be placed in liquidation, to make his
suggestions with regard to the number of persons, their experience
and training to be appointed as liquidators of the business or the
company; and



10.7 should the curator propose that
the rule be confirmed and his provisional appointment be made final,
to give an indication of the term required for completion of the
curatorship.



11. That the curator shall be entitled
to reasonable remuneration based on an hourly rate in accordance with
the norms of his profession, such remuneration to be paid for the
assets of or under the control of the business or the company on a
preferential basis.



12. That this order as well as a copy
of the application shall be served on the company and publication of
the order shall be effected in one issue of the Namibian newspaper
and in one issue of the Government Gazette.








________________



DF SMUTS



Judge








APPEARANCES








FIRST APPLICANT: A. Corbett



Instructed by Shikongo Law Chambers








FIRST RESPONDENT: R. Heathcote SC,
(with him A. Van Vuuren)



Instructed by Fisher, Quarmby &
Pfeifer









12005
NR 155 (HC) at 164-166





21986(3)
SA 568 (A) at 571 A – 579 G.





31989(4)
SA 631 (SWA) at 651 F-G





42012(1)
SA 453 (SCA)