WINDHOEK – While all the other defense counsels for the seven Avid accused still want Judge Christi Liebenberg to quash eight of the charges they face, the defence counsel for retired Brigadier Mathias Shiweda told the court that he concedes a point to the State.
Defence counsel Richard Metcalfe said after he carefully scrutinised various case laws he came to the conclusion the State is eligible to pursue charges on the repealed Act against the accused.
“On this I am actually on the State’s side, My Lord,” he told Judge Liebenberg before handing in volumes of case law to the bench.
However, Sisa Namandje who represents parliamentarian Paulus Kapia told the judge that he continued his objection to the charges.
He said he also scrutinised the various Acts and came to the conclusion that there was no principle in law that a person could be charged and convicted on a law that no longer existed. He said that where there was a conflict between an Act of Parliament and/or an Act that existed before independence and the Constitution, the supreme law of Namibia always wins.
“That is a given,” Judge Liebenberg reminded Namandje.
Werner Boesak who represents Inez Gâses said in support of Namandje that laws must have a general application not a selective one. He said the State cannot arbitrarily prosecute only “selected” persons on an Act that no longer existed.
According to Boesak the State’s position was in stark contrast to the provisions of the Constitution.
Also in support of Namandje was the legal representative of Nico Josea on instructions of legal aid. Slysken Makando argued that the duty of a court is simply to interpret the law.
He said the intention of the legislative when they repealed the existing law and replaced it with the new law without transition provisions was just that – to decriminalise the section removed. Christi Mostert who represents Ralph and Sharon Blaauw as well as Otniel Podewiltz agreed with Namandje’s submissions.
Judge Liebenberg reserved his ruling until today.
Kapia and his co-accused 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of reckless or fraudulent conduct of business, which is a contravention of the Companies Act, Act 61 of 1973 that was repealed and replaced with a new Act in 2010. Podewiltz alone also faces one charge of corruption for allegdly accepting cash as inducement for favours from the late Lazarus Kandara while working for the Ministry of Labour, while another count of corruption was added to the charge sheet for all the accused.
The charges are in connection with an SSC investment of N$30 million that was placed with an asset management company, Avid Investment Corporation, and channelled to another asset management company, Namangol Investments, in January 2005.
All the accused are out on bail of N$10 000.
By Roland Routh