WINDHOEK – In response to Teckla Lameck’s application for Judge Maphios Cheda to recuse himself for allegedly mentioning warrants instead of summonses, State Advocate Jack Eixab argued it was an inadvertent and innocent misuse of terminology.
He said it was clear from the judgment in which Judge Cheda declared summonses issued by Anti-Corruption (ACC) Director, Paulus Noa, valid that the judge was referring to summonses when he mentioned warrants.
This he said is demonstrated by the judge’s reference throughout the judgment to the director of the commission.
According to Eixab, it is only the director of the ACC who may issue summonses according to Namibian law and only magistrates are permitted to issue warrants of search and seizure. This is only a matter of using incorrect terminology and has nothing to do with the issues argued in the trial-within-a-trial that led to the judgment now used to discredit the judicial system, Eixab said.
Earlier during their arguments, Senior Counsel Richard Heathcote who joined the defence team for the application assured the judge that it was not a personal attack on him nor was it an attempt to damage the justice system.
He said that the reason for the application was merely to remove a judge who has shown bias be it by mistake or otherwise.
He said the accused, being reasonable, informed persons have a reasonable apprehension of bias given the fact that Judge Cheda decided on an issue not yet before him.
In the judgment, which is the bone of contention, Judge Cheda referred to warrants of search and seizure instead of summonses.
Eixab on the other hand argued that no prejudice was meted out to the accused as they are not stopped from objecting to the introduction of the warrants when so warranted.
Eixab told the judge the onus to prove their apprehension of bias rests squarely with the applicants who must convince the court with reasonable grounds.
The test here is not just to allege a mere whiff of bias, but also to produce relevant evidence, he argued.
The mere fact the judge started his judgment with the words “objected to the validity of summonses issued,” is a true indication he relied upon the information provided and argued, according to Eixab.
To this end, he said, the application should be dismissed. Judge Cheda indicated he would give his ruling on 14 November.
Lameck, her business partner Jerobeam Kongo Mokaxwa and Chinese citizen Yang Fan are accused of committing fraud amounting to millions of Namibian Dollars.