WINDHOEK – More than nine years after a botched N$30-million investment deal by the Social Security Commission (SSC) landed some prominent Namibians in hot water, their legal representatives want the High Court to dismiss some of the charges against them.
Sisa Namandje, who is the lawyer for Swapo backbencher Paulus Kapia, lodged an objection to the charges related to the Companies Act. Namandje said the Act was repealed in its totality and replaced with a new Act.
Kapia and his co-accused, Inez /Gâses, Otniel Podewiltz, Sharon Blaauw, her husband Ralph Blaauw, retired Brigadier Mathias Shiweda and Nico Josea are all charged with a count of fraud, alternatively theft, and a host of charges of reckless or fraudulent conduct of business, which is a contravention of the Companies Act, Act 61 of 1973 that was repealed and replaced with a new Act in 2010. Since the alleged offences were all committed under the old Act, Namandje argued, his client could not be tried under an Act that no longer existed. That should also be relevant to the other accused, he added.
He said the State could not insist the accused be charged under a totally repealed Act.
Podewiltz alone also faces one charge of corruption for accepting cash as inducement for favours from the late Lazarus Kandara while working for the ministry of labour, it is alleged, while another count of corruption was added to the charge sheet for all the accused. Kandara died in an apparent suicide just hours after he was arrested.
The charges are inconnection with an SSC investment of N$30 million that was placed with the asset management company of Kandara, Avid Investment Corporation, and channelled to another asset management company, Namangol Investments, in January 2005.
The money was supposed to be repaid with interest after four months. When Avid Investment Corporation was not able to deliver on that undertaking the SSC went to the High Court in July 2005 to have the company liquidated.
A Companies Act enquiry on the financial collapse of Avid followed in July and August 2005.
The State is alleging that of the N$30 million that the SSC transferred to Avid to be invested, N$29.5 million was transferred to Namangol Investments, which was owned and run by Josea.
Of this money, some N$14.9 million landed in Josea’s personal bank account in mid-March 2005, and he went on to deal with the money as if it were his own, it is also alleged.
While in the original indictment six of the charges relating to the Companies Act only applied to Kapia, /Gâses, Podewiltz and Sharon Blaauw an amended version charged all of them with the offences listed.
This amended indictment was what irked Richard Metcalfe, the lawyer for Shiweda to the extent that he called the conduct of State Advocate Ed Marondedze “for lack of a better word luxidatious”.
He said Marondedze caught him by surprise when he sprung the amended indictment “virtually one minute before ten”.
He said although he agreed with Namandje’s arguments, he would have taken a different approach to bring the issue under the court’s attention.
Metcalfe asked the court to grant him a postponement to prepare a new plea explanation as the one he prepared was no longer relevant.
Werner Boesak who appeared for /Gâses indicated he was also in total agreement with Namandje’s assertions, and the same was said by Christie Mostert who appeared for Podewiltz and the two Blaauws.
Slysken Makando who represents Josea on instructions of the Legal Aid Department said although his client was not charged with the Companies Act offences in the previous indictment, the amended one prompted him to take a similar view as that of the other defence counsels.
Marondedze argued for the State that the offences were committed while the old Act was still in place and as such the accused may be tried. He said whether the old Act was repealed it remains an offence since the Act was operational when the offences were committed. Judge Christi Liebenberg granted the defense counsels a remand to tomorrow and asked them and the State to come forth with “authorities complimenting their arguments”.
All the accused are out on bail of N$10 000 bail.
By Roland Routh