Iuze Mukube
Windhoek High Court Judge Nate Ndauendapo has partially upheld an application for discharge brought by two individuals accused of defrauding the government of over N$3 million.
The ruling follows an application made by Cameroonian-born businessman Antoine Mbok, who is cited as the first and second accused in his capacity as the director of his company MFinance, and his co-accused Daniel David Nghiwilepo, in terms of Section 174 of the Criminal Procedure Act.
Mbok and Nghiwilepo, at the close of the State’s case, applied for discharge, contending that the prosecution had failed to lead prima facie evidence to sustain a conviction against them. The two faced ten charges, including alternatives of contravening various provisions of the Anti-Corruption Act, the Prevention of Organised Crime Act (POCA) and theft. Mbok was discharged on five charges dealing with counts of corruptly using an office or position for gratification and on two counts of performing acts which have the effect of disguising or concealing the nature, origin, source or movement of property or its ownership, which forms part of the proceeds of unlawful activities.
He was refused discharge on a count of money laundering and on one count of performing any act which has the effect of disguising or concealing the nature, origin, source or movement of property or its ownership, which forms part of the proceeds of unlawful activities.
Meanwhile, Nghiwilepo was discharged on charges of money laundering and a count of performing acts which have the effect of disguising or concealing the nature, origin, source, movement or ownership of property forming part of the proceeds of unlawful activities and its alternatives.
Nghiwilepo also succeeded in being granted discharge on five charges of corruptly using office or position to obtain gratification and its alternatives, with three other counts of performing acts which have the effect of disguising or concealing the nature, origin, source or movement of property, or its ownership, which forms part of the proceeds of unlawful activities. He failed to be discharged on an alternative of conspiracy to commit corruption on both counts.
Nghiwilepo now has two counts on the alternative that he will have to face in court involving conspiracy to commit corruption.
On the other hand, Mbok will answer for three charges, including money laundering and two counts of performing acts which have the effect of disguising or concealing the nature, origin, source, movement or ownership of property forming part of the proceeds of unlawful activities.
Judge Ndauendapo found that no prima facie case had been established on several counts and granted discharge in respect of those counts, while refusing discharge on others where sufficient evidence existed, resulting in a partial discharge of all accused.
He further found that Veronica Thomas, who was implicated alongside the accused, but who pleaded guilty to the charges at the start of the trial, was a single witness and an accomplice. Therefore, her evidence was to be treated with caution.“She is a self-confessed criminal, who had a romantic relationship with accused 3 [Nghiwilepo] that ended on a sour note,” he stated. He added that, while credibility generally plays a limited role at this stage, the evidence of such poor quality cannot sustain a conviction, particularly where it rests on an uncorroborated accomplice.
Thomas testified that Nghiwilepo contacted her and wanted her involvement in a big project he was working on, and subsequently allegedly convinced her to steal cheques that were paid at the office of the Receiver of Revenue.
She allegedly eventually agreed and stole five cheques and handed them to Nghiwilepo. The stolen cheques were allegedly deposited into the bank account of MFinance, which was solely owned by Mbok. Thomas pleaded guilty to five counts of corruptly using her office at the finance ministry 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.
It is alleged that 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 finance ministry, 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.