Valabhji couple fail to satisfy court conditions for payment of legal fees, ACCS maintains |14 January 2023

Prominent business couple Mukesh and Laura Valabhji who are being tried for corruption by the Anti-Corruption Commission of Seychelles, were back in court yesterday morning, for yet another hearing relating to access to funds to pay off their legal fees.

The issue was put before the Supreme Court to decide upon since last year and Chief Justice Rony Govinden on November 10, 2022 ruled that the Anti-Corruption Commission of Seychelles (ACCS) must allow the payment of invoices for legal fees from accounts under their administration, subject to four conditions, namely:

a)  Mr and Mrs Valabhji must demonstrate that they hold interest in the company to which the invoice is presented for payment;

b) The invoice must be regarding bona fide legal service rendered to Mr and Mrs Valabhji;

c)  Compliance with the provisions of the Companies Act with regard to company’s decision to settle the payment;

d)  In case if it is only Mr or Mrs Valabhji who holds interest in the company, either one of them can decide to share the disbursement to one another.

During yesterday’s hearing, ACCS lawyers Michael Skelley and Edmund Vicars pointed out that the ACCS has sought to apply the ruling, and that conditions (a) and (b) of the ruling are satisfied, while condition (d) is not contested, nor relevant to the issues before the court.

Mr Vicars explained that the outstanding issues to be resolved by the court are whether the director’s resolutions with regard to payment of the October invoice by Zaiwalla and Company for international legal fees raised to Zil Pasyon Resort Limited, and Intelvision Limited (Ltd), meet condition (c) of the court’s ruling.

It must be noted, the Zaiwalla invoice, for £542,000, approximately R8.6 million applies for 50 percent of the proposed legal fees for three months’ work.

According to the ACCS, the director’s resolutions submitted to the ACCS are in breach of the Companies Act 1972; and that there has not been compliance with the court’s ruling.

Mr Vicars pointed out that the purported ‘advance’ referred to in the directors resolution is dressed up, and is in fact a loan to a director, which is prohibited by section 172 of the Companies Act.

Furthermore, Mr Vicars noted that Mr Valabhji signed the director’s resolution in favour of himself while also seeking to divorce himself from the role of director by suggesting that this is an ‘advance’ to him as the ultimate beneficial owner (UBO) and not as the director.

The Seychelles companies law does not recognise the concept of UBO, he pointed out.

With regard to justification in the resolutions that ‘the reputation and operations of the company is at risk’, the ACCS labelled this as “misleading and disingenuous” since the reputation of a company is defined by its activities, and not the private affairs of individuals associated with it.

Still in relation to the resolutions, Mr Vicars said such is inconsistent with the duties of a company director who has a duty to act in good faith and in the best interest of the company, especially considering that both companies were at some point facing financial difficulties.

According to the financial statements to which the ACCS and the court has access, Intelvision Limited, the company made R308 million in losses during the year ending December 31, 2020 and the company has had to take out a loan of US $30.3 million.

Meanwhile, Zil Pasyon Resort Limited recorded pre-tax losses of over US $11 million for the year ending December 31, 2019, and a further US $15.9 million for the following year. The company secured a significant bank loan totalling US $10.9 million and in addition benefitted from the taxpayer funded Financial Assistance for Job Retention (FA4JR) scheme in 2020/2021, to a sum of R9.685 million. Based off the fact that the company required taxpayers’ funds in 2020/2021, it is doubtful that payment of the amount to Zaiwalla is a justifiable use of the company funds, the ACCS argued.

The current financial position of both companies are not known presently as the two companies are yet to lodge up-to-date company accounts.

In light of the fact that Mr Valabhji holds substantial assets both at home and abroad “he does not need to use one of his companies to pay his legal fees”, the ACCS further highlighted, stating that both Mr and Mrs Valabhji could make use of their personal accounts to pay their legal fees. Mr Valabhji paid off an initial invoice for international legal representation amounting to US $457,000, equivalent to R5.9 million in December, from funds held in a bank account in Singapore, it was revealed to court.

The Zaiwalla invoice which is presently being disputed, is, according to the ACCS, addressed to Felicite Island Development Limited (FIDL) and not Zil Pasyon Resort Ltd, which suggests that Mr Valabhji is “using his companies as his own private bankers”.

The ACCS maintained that the suggestion that the ACCS’ position on payment of fees is what is causing delays in the case is “wrong and disingenuous”. The ACCS has repeatedly acknowledged Mr and Mrs Valabhji’s right to legal representation by the lawyer of their choice, and at their own expense, Mr Vicars asserted before the court.

In relation to a further three affidavits served on the ACCS by Mr Valabhji’s legal representative France Bonte on Thursday, the ACCS noted that certain aspects are vague and not supported by evidence, once again deeming the directors’ resolutions as “unclear, imprecise and unsatisfactory”.

Despite the fact that the hearing was set for yesterday, Mr Bonte requested that the parties return to court over the next few days as he needs more time to prepare his oral submissions, to which CJ Govinden agreed.

As such, the parties will be back in court on Tuesday, January 17.

Laura Pillay