Iuze Mukube
Cameroonian-born businessman Antoine ‘Tony’ Mbok and his co-accused Daniel David Nghiwilepo, who are accused of N$3.9 million fraud, are seeking a discharge in terms of section 174 of the Criminal Procedure Act.
Their defence lawyers, who made submissions before Acting Judge Nate Ndauendapo last week argued that their clients should be acquitted due to what they described as poor-quality evidence presented by the State.
Nghiwilepo is represented by Advocate Slysken Makando, instructed by Isaacks and Associates Inc while Mbok and his corporation by Sylas-Kishi Shakumu of Kishi Shakumu & Co. Inc., and the State is represented by Advocate Taodago Gawaseb.
Makando argued there was no evidence in court to prove that Nghiwilepo was a public officer, a necessary element under section 43 of the Anti-Corruption Act for one to be convicted for corruptly using an office or position for self-gratification.
Basically, for Nghiwilepo to be charged under that section, he must be a public officer, and there is no evidence before the court to prove that he is.
Additionally, the advocate argued that there was inconsistency in the testimony of the witness, Veronika Kituna Thomas, and urged the court to approach her evidence with caution, given her previous romantic relationship with Nghiwilepo.
On that note, it was also pointed out that Thomas had been convicted of dishonesty.
Hence, taking all of that into account, while also cautioning the court that the witness was an accomplice, the advocate argued that the truth had not been told.
Makando argued that the state’s evidence falls below the threshold necessary to ensure justice is served.
Thomas pleaded guilty to five counts of corruptly using her office at the Ministry of Finance and her position for self-gratification at the start of the trial before High Court Judge Alfred Siboleka on 10 February 2012, and was sentenced to an effective eight years’ imprisonment.
Shakumu pointed out to the evidence of witness Denzel Jarvis, who testified about a cheque from the finance ministry that was paid into the account of Mbok’s company, MFinance.
The lawyer argued that, in aligning with the witness’s account, the cheque was mistakenly deposited into his client’s business account; hence, Mbok had no knowledge of its origin.
Additionally, there was no evidence that those deposits were made into his client’s own or business account, and that money deposited into the business account had nothing to do with suspicious transactions.
The State opposed the application, arguing that both accused provided plea explanations, which were also recorded as admissions in terms of section 220 of the Criminal Procedure Act.
In short, Mbok does not dispute that cheques were paid into MFinance; however, he disputes any knowledge of where they came from.
Nghiwilepo, in his plea and admissions, indicated that he knew Mbok and that he received certain amounts of money from him; however, according to the plea, it was a loan that Mbok paid him back.
Gawaseb added that the application should not be granted because, considering the two accused’s plea and admissions, the prosecution’s case against one accused might support its case against the other.
Mbok is the first and second accused in his capacity as the director of MFinance, while Nghiwilepo is the third accused.
A summary of substantial facts contained in the charge sheet has it that the two men, in cahoots with Thomas, allegedly defrauded several Namibian businesses and government agencies of up to N$3.9 million in Value Added Tax (VAT) and returns for import VAT.
The State alleges that between 25 January 2010 and 18 February 2010, five cheques, destined for the account of the ministry of finance, were intercepted and deposited into MFinance’s account.
The affected companies and entities in the alleged fraud comprise GS Fainsinger and Associates, the Ministry of Health and Social Services/Global Fund, Edu-Loan (now Letshego Financial Services Namibia), Kalahari Sands Hotel and Casino, and Afrisam Cement.