The Chief Executive Officer of Itekanele Medical Health Scheme, Solly Reikeletseng has decided not to go down without a fight against the Non-Bank Financial Institutions Regulatory Authority (NBFIRA), which of late is on gear five, shutting down a number of local businesses for alleged non-compliance.
Reikeletseng, whose company started attracting the attention of NBFIRA in July this year, has particularly taken aim at the Chief Executive Officer of the NBFIRA, Oaitse Ramasedi, whom he has cited for contempt in his urgent court application filed on Thursday. Through Maphakwane and Partners, Reikeletseng wants an Order granted declaring NBFIRA and Ramasedi to be liable and in contempt of the Court Order dated 14th July 2017 by refusing to authorize urgent transactions of the Applicant, Itekanele, as ordered.
He is also seeking an Order directing NBFIRA and Ramasedi to specifically authorize urgent transactions of Itekanele relating to the payment of rent, employees’ wages and service providers’ claims within 24 hours. He further wants the court to grant an order directing that should Ramasedi fail to comply within the said 24hours, he be committed to prison for at least 60 days until compliance.
The genesis of the NBFIRA/Itekanele tiff is such that on 13th July 2017, NBFIRA lodged an urgent application before court through which it sought to confirm the temporary closure of Itekanele business; they also soguht to freeze the accounts. However, NBFIRA was further instructed by the court to authorize urgent transactions of Itekanele and that the latter be entitled to conduct such business activities, which shall from time to time be authorized by NBFIRA, pending consideration of the temporary closure of the business.
The judge made it clear that “in the interim the Applicant shall authorize urgent transactions of the Respondent to allow it to maintain its financial obligations”. The Judge had also stated that Itekanele shall be entitled in the interim to conduct business activities it is already handling which shall from time to time be authorized by the NBFIRA pending the resolution of the matter. Furthermore, the Judge said the “Respondent’s existing clients shall continue to be adequately serviced by the Respondent during the period of the temporary closure.” In an affidavit he deposed on Thursday, Reikeletseng notes that NBFIRA has flagrantly disregarded it and inexplicably refused to comply with the Order to authorize urgent transactions of Itekanele to allow it to maintain its financial obligations.
NBFIRA has refused to pay salaries for Itekanele employees for two months; refused to pay rent for two months and the landlord wants Itekanele out of his building; NBFIRA is also refusing to pay the medical ad scheme’s service providers and on Thursday five of them terminated their relationship with the medical aid scheme. In his affidavit, Reikeletseng points out that he wrote NBFIRA a letter through which he requested that they authorize the payment of employees’ salaries from Itekanele’s BanABC account, the letter was ignored by NBFIRA. The Itekanele Chief wrote a similar letter on 1st August 2017 and it was responded to by NBFIRA attorneys on 9th August 2017 “with a lukewarm and indifferent correspondence”.
Reikeletseng further writes that on 31st July 2017, in pursuit of the said Court Order, he issued a letter to NBFIRA requesting for authorization of certain payments to service providers in the form of medical practitioners, which were due for payment. “I state further that, despite due and repeated demand, Respondents have unwarrantedly refused to authorize urgent transactions in relation to certain payments owing to service providers. Instead, Respondents have employed myriad excuses and delay tactic s, which fly directly in the face of the above mentioned Court Order. It follows, therefore, that the Applicant’s service providers have not been paid for months of July and August 2017, bringing Applicant’s business to a grinding halt.”
The situation has worsened at Itekanele, the landlord’s patience with non-payment of rent has expired. In his affidavit, Reikeletseng indicates that: “..On 31st August 2017, Itekanele received a letter from COLLINS NEWMAN & CO. indicating that –following the award of a default judgement against the Applicant for unpaid rental arrears and the amicable conclusion of a payment plan in relation thereto – Applicant’s (Itekanele) landlord’s patience had expired, owing to Applicant’s inability to honour the aforesaid payment plan, and Applicant was put to terms to make immediate payments plan, or face eviction by 14th September 2017.” Reikeletseng argues that transactions relating to employees’ salaries, rental payments and payments to service providers – undoubtedly constitute urgent, if not essential transactions and fall well within the scope of the court order. “Therefore, the Respondent’s undue and inexplicable failure, neglect or refusal to authorize the same consequently constitutes contempt of court.”
Reikeletseng also reads an insidious agenda on the part of NBFIRA. He writes that on 5th September 2017, NBFIRA filed a replying affidavit in the main application wherein they annexed certain financial statements – and purported to rely on the same as proof of Itekanele’s non-compliance. I state that the aforesaid financial statements were erroneously submitted to NBFIRA and that on 25th August 2017, being well before NBFIRA filed its Replying Affidavit, Itekanele supplied NBFIRA with appropriate financial records and thereby substantially complied with what was required of it.”
According to Reikeletseng Itekanele accounts are liquid and is now and has been, at all relevant junctures, capable of meeting financial commitments, save for NBFIRA’s undue and unreasonable contemptuous conduct. The Itekanele Chief Executive Officer tells the court that the ongoing state of affairs is occasioning immeasurable and irreparable hardship on Applicant’s employees. “In fact, owing to Applicant’s inability to pay its employees’ salaries for two months, the said employees are facing eviction, financial distress and ruin – as monthly rentals have gone unpaid, monthly stop orders have not been honoured and various expenses have not been met, inter alia. In this respect, Itekanele employees have encapsulated their hardships in various formal complaints tendered.”
According to Reikeletseng as a result of the ongoing financial distress, one of the company’s employees – having reached a state of utter despondency – has unsuccessfully attempted suicide and is currently recovering in hospital. He further states that he has been forced to discharge the labour force and allow employees to remain home, pending the resolution of the matter instant, for a lack of a better option.
He further indicates that what NBFIRA has done has caused immeasurable and irreparable harm to the business and finances, as service providers – who Itekanele has been unable to pay – consequently refuse to service clients and this has spurred an unprecedented and catastrophic exodus of Itekanele clients, who are now terminating their membership en masse for lack of service. He states that the initial court order was meant to curtail this very situation. Reikeletseng and his lawyers want an order granted declaring NBFIRA liable and in contempt of Court Order dated 14th July 2017 by refusing to authorize transactions of Itekanele as ordered. He wants NBFIRA to comply failing which Oaitse Ramasedi must be jailed for 60 days.
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