The accusations are contained in affidavits in an urgent restraint of trade application by Big Catch Fishing Tackle (Pty) Ltd and Hout Bay marine biologist and businessman David Christie which was heard in the Western Cape High Court this week.
Calling Christie’s latest application “ill-founded” in his responding heads of arguments, Kemp denied all allegations as untrue and devoid of merit. “They amount to nothing more than baseless statements that are vexatious, scandalous and defamatory”
Christie and Big Catch seek the interim interdict to restrain Kemp, his former Big Catch colleague Richard Wale, and their new venture in which they are co-directors, Upstream Fly Fishing CC, from “unlawfully usurping the business opportunities of Big Catch, from competing with Big Catch and from undermining Big Catch’s goodwill by interfering in its customer base”.
According to Kemp’s responding papers, all accusations of fishy business are just not cricket.
Over two days of argument, the court heard that during Kemp’s tenure as Big Catch co-director “he made unauthorised and undisclosed secret profits, unlawfully usurping Big Catch’s business opportunities and competing with Big Catch by doing business with its customers and service providers”.
It was also alleged that after the termination of Kemp’s directorship in March last year, “he continued to unlawfully misappropriate and exploit Big Catch’s business opportunities and customers”.
This week’s application is the latest in an ugly legal battle raging since March 2018 when Christie accused Kemp of running his own “shadow” business on the sideline and siphoning off commissions from fishing charters he thought were being hosted to promote the Big Catch brand. Christie also alleged that Kemp took fishing tackle at cost from Big Catch stock and sold it to his friends for personal profit.
In one of the many affidavits handed up to court this week, Christie details how he stumbled on notes in Kemp’s handwriting on the boardroom table in mid-March last year that indicated he was up to something fishy.
Christie claims a forensic trawl through Kemp’s emails on the company server revealed he was conducting an elaborate shadow business and siphoning commissions due to Big Catch. His attempt to confront Kemp on March 15 last year was met with “blunt denials” and “arrogance and belligerence”.
This led to the attempted firing of Kemp as a director and his resignation.
“He was threatened with criminal prosecution if he did not resign and was faced unexpectedly with wild allegations by Christie and his father,” Kemp attorney Peter Wheelan explained when approached in May last year.
“He was taken aback. He thought of his wife and children, his reputation which is relatively big in the market. And he said, ‘I don’t need this in my life’, so he resigned.”
Following his resignation, Kemp hit back with a High Court application to liquidate Big Catch to recover his initial capital investment of R2.2 million in the company. The application was withdrawn in August.
Prior to this, Christie alleges that mere days after resigning, Kemp with his wife Brigid and their two children returned to his former office over the weekend, forced their way past security and attempted to delete information on his computer. Christie claims that at this stage Kemp was unaware that he had made a back-up of all his data.
The disputed charters were mainly to the Seychelles atoll Alphonse Island, one of the most exclusive and unique salt water fly-fishing destinations in the world. On average, a charter including accommodation in a luxury boutique hotel and flights costs a fisherman R150 000 a week. Alphonse concession owners paid charter hosts like Big Catch around $1000 per fisherman.
According to an earlier affidavit, Kemp hosted up to six charters a year to Alphonse and allegedly siphoned at least R1.9m in commissions.
Because Christie’s interdict application relied on these unproven allegations it should be dismissed with costs, Kemp argued. The application also failed to meet the legal requirements for it to be urgent.
In addition Christie and his fellow applicants “fail to establish, both in fact and in law, the duties and obligations which they allege are binding on the respondents”.
They also “fail to prove the alleged breach of these purported duties and obligations, and the mandatory requirements for interdictory relief have not been satisfied.”
The application hearing was postponed for judgment.
Kemp made his Proteas Test and ODI debut in January 2001 and retired from the international scene in 2007 after winning four Test caps and 85 ODI caps. Kemp played for Eastern Province, Northerns and Western Province, while in the English county cricket he represented Worcestershire and later Kent’s ODI side the Spitfires between 2005 and 2009. He also played one season of IPL cricket for the Chennai Super Kings.