Iuze Mukube
Defence lawyer Sisa Namandje in the ongoing Namcor Oil-rot corruption bail hearing yesterday, said ACC investigating officer Oberty Inambao has made fatal concessions that have crumbled the State’s case to the ground.
He made this remark during closing arguments for his clients, brothers Peter and Malakia Elindi.
He, at first, pointed out that during cross examination of Inambao, the State had serious problems with relying on the charges as crafted for the purposes of the bail application.
He noted that the officer, “on the verge of tears”, complained that the charges contained mistakes due to time pressure, defending that they were still preliminary.
“It became apparent that the allegations made in the charge sheet contradict the case being investigated by the investigating officer,” stated Namandje.
Additionally, Namandje stated that Inambao struggled to put up a meaningful explanation of the acts of fraud allegedly committed by the Elindis. Subsequently, Namandje stated the State’s case crumbled at the time Inambao “ultimately conceded that the assets purchase agreement and the fuel supply agreement were “legitimately” concluded transactions.”
He added that everything only changed into criminal activities once the alleged bribes from N$9.5 million to Eco Trading by Enercon for fuel supply transpired.
Part of the concession by the officer, according to the lawyer, also included that some of the charges, in the way they were crafted, left out key elements of those offences, and in some cases, the charges were wrong.
Namandje added that the officer was found suggesting that “some employees of Namcor merely failed to do proper due diligence and fell short of alleging mens rea in the form of intention.”
In response, Namandje submitted that Namcor should have taken the recourse ordinarily taken in commercial law or by way of disciplinary steps against such employees, not criminal proceedings.
The lawyer also told the court that the officer failed to put on record the reason or “trigger event” for the “rushed arrests”, arguing that an arrest must be necessary by law.
He stated the arrests were “arbitrary”, provided the officer did not arrest the Elindis because they are flight risks, would interfere with investigations or are a danger to society, but simply made the arrest when the officer felt that the evidence collected had reached a certain stage.
Additionally, Namandje submitted that Inambao also conceded that there were several problems with charges, including wrong charges when considered against the provisions of the Anti-Corruption Act and the Prevention of Organised Crime Act (POCA).
Furthermore, Inambao accepted and conceded that the purchase agreement was legitimately entered into and that even assuming there was fraudulent misrepresentation, Namcor, during September 2023, made an election in contract to keep the contract intact, binding and valid.
He added that the investigation officer gave “incoherent, contradictory, inconsistent, and confusing evidence” on the allegations of fraud against the Elindis. It is also Namandje’s fervent position that Inambao was unable to point to any evidence he collected linking the applicants to the alleged payment of bribes.”
Funny enough, in a strategic manoeuvre in court, Namandje provided an illustrative picture of written scribbles to portray the inconsistent nature of the evidence provided by Inambao.
He added that while his clients provided enough evidence as to the aspects of being worthy candidates for bail, the State was unable to put forward any case whatsoever as to the strength of its case.
According to Namandje, the State also failed to provide evidence or any reasonable facts that the release of the Elindis will jeopardise the administration of justice.
Driving his argument home, Namandje said, given the purported weak nature of the State’s case, his clients should either be released on warning or out on bail of N$50 000.
Equality
On the other hand, Gilroy Kasper, the lawyer representing Olivia Dunaiski, put it to Inambao during the course of this week’s hearing that his client is accused of having committed the lesser of two evils.
He was pointing out that Dunaiski’s allegations, when juxtaposed to those of Enercon CEO Connie van Wyk, who was recently released on bail, seemed to be small in nature.
Dunaiski is charged, among other counts, for allegedly receiving a gratification of N$10 000 for the smooth purchase of Enercon’s assets by Namcor.
This count, as stated by her lawyer, was a far lesser offence than the one alleged against Van Wyk, which involves amounts totalling N$1.5 million.
This was rejected by Inambao, who said corruption was not a numbers game. Inambao also told Kasper that his client’s actions resulted in the loss of over N$200 million by Namcor, which is more than whatever Van Wyk is accused of.
Breakdown
Inambao, also during this week, provided a breakdown of more than N$400 million allegedly embezzled from Namcor.
He stated the amount included N$73 million in debt owed to Namcor by Eco Fuel, N$53 million for asset purchases, N$35 million worth of fuel supplied to Enercon, and N$238 million worth of fuel supplied to Erongo Petroleum CC.
–mukubeiuze@gmail.com
Photo: Heather Erdmann