Maria Amakali
A fishing company, against which Seawork Fish Processors is trying to get a court interdict against it selling off its fishing quotas, says the latter is trying to secure future quotas through it.
The joint venture company, Green Rose Trading, is arguing Seawork’s suit against it is an attempt to secure future fishing quotas, despite it never having been a recipient of the quotas in question.
Seawork Fish Processors wants the High Court to compel the joint venture, which comprises Fimaro Fishing, Ovatue Fishing, Quito Quanavale Fishing, Uuyamba woShigwana, Indila Fishing and Otjomuru Fishing, to honour their 2016 quota participation agreement (QPA) of selling off its quotas to it only.
The company further seeks the court to declare that the quota allocated in November 2021 and further allocations to Green Rose and/or its shareholders form part of the agreement.
In addition, the court should award Seawork a payment of N$12.8 million in damages.
However, Green Rose’s lawyer Andrew Corbett argued last week before High Court acting Judge Philanda Christiaan that Seawork’s urgency is self-created and self-serving, as they seek an interdict when they are waiting for the conclusion of arbitration proceedings.
In the arbitration proceedings, Seawork is claiming present damages and past losses it allegedly suffered as a result of Green Rose’s refusal to sell its quotas to it.
The hearing is set for 29 November.
“What the applicant essentially seeks to protect is nothing more than a financial benefit to be derived from the fishing quotas sought to be interdicted,” said Corbett. He further argued the possibility of financial hardship or losses per se does not constitute grounds for urgency within the courts.
The companies that make up the joint venture, Green Rose, are adamant they will not sell their fishing rights at reportedly cheaper rates to Seawork. In addition, they claim Green Rose, with whom the company entered into an agreement, currently does not own fishing rights.
Furthermore, the agreement was concluded between Seawork and Green Rose, thus the companies are not bound by the conditions of the agreement, as they were not party to it. So, Seawork is only entitled to the fishing rights allocated to Green Rose but not those allocated to the companies in their individual capacities.
Green Rose alleges Seawork tried to rope in the fisheries minister to force them to sell – but when he was of no help, they went to court. Their first court application was dismissed in January.
Corbett has asked the court to dismiss the application on the basis that it lacks merit and urgency, and Seawork has failed to add the fisheries minister to the proceedings as an interested party.
In its defence, Michael Fitzgerald, lawyer to Seawork, argued that although the quotas were allocated to individual companies that make up Green Rose, in law, it belongs to Green Rose.
Seawork claims per the 2016 agreement that Green Rose would sell the fishing rights allocated to it by the fisheries minister exclusively to Seawork for harvest. Furthermore, the rights shall include any and all bycatch allocated by the ministry. Because of the exclusive agreement, the parties agreed it would be prudent for Green Rose to acquire 15% shares in Seawork through Namhake.
Green Rose owns 33% shares in Namhake, while Namhake has a 15% stake in Seawork. Namhake acquired the 15% stake in Seawork for N$30.6 million. Seawork claims it does not understand why Green Rose would not honour the agreement when it made a lot of money through its partnership and shareholding. Since their agreement six years ago, the joint venture has made about N$80 million.
Seawork claims the company’s refusal to sell their quotas to them is jeopardising employment for 1 900 seamen. According to Seawork, they have tried all means not to end up in court.
“The respondents (Green Rose) act relentlessly. They also act ruthlessly. Only the court can bring an end to their greed by issuing the relief sought, pending the award of the arbitrator,” said Fitzgerald.
Fitzgerald further said the order sought is merely to compel Green Rose to honour its obligations as stipulated in their agreement. The court will give a ruling in the matter on 16 November.
– mamakali@nepc.com.na