Windhoek
The main accused in the fraud trial in the Windhoek High Court, Paulus Ilonga Kapia, was charged wrongly, his lawyer Sisa Namandje said yesterday.
Namandje was arguing in support of his client’s discharge under Section 174 of the Criminal Procedure Act (CPA).
According to Namandje, the State made a fatal strategic choice by not charging Kapia in his capacity as director through Section 332(5) of the CPA, while the evidence it presented was effectively for the purpose of proving that the offences were committed in the course of corporate activities, although guilt on this is denied.
Section 332(5) makes provision for the State to charge anyone who is a director or servant of a corporate body guilty of an offence.
“While the arrest and prosecution of Accused 1 (Kapia) together with others have both been carried out and executed with much unwarranted fanfare, we contend that in the final analysis (after the evidence of a number of State witnesses, many of whom in fact ended up giving evidence exculpatory of Accused 1 and some of the accused) it became all too clear at the close of the State’s case that there is indisputably no evidence proving the commission of any criminal act by Accused 1,” Namandje stressed.
He went on to say that Kapia was “strangely charged in his personal capacity” while he readily admitted, and the State actually accepted, that he was involved as a director in an inexperienced asset management company (Avid) when it was “unlawfully” contractually engaged by the Social Security Commission (SSC) to invest N$30 million.
He further stated this situation was exacerbated by a poor police investigation and fatal omissions to call certain material witnesses, especially Alan Rosenberg.
Certain evidence by witnesses points to the fact that the senior management of SSC unlawfully decided to invest at their own instance, and without undue influence from Kapia or the other directors, N$30 million with Avid, he said.
They did this without consulting the minister of labour, without the Investment Steering Committee’s approval, without the Commission’s (SSC’s) approval when there was a direct prohibition in the form of the Investment Steering Committee’s decision against investing with asset managers, argued Kapia’s lawyer.
According to Namandje it further became clear from the evidence presented that the top management of the SSC was “determined to invest with Avid at all costs, whether or not the investment was illegal”.
He said the belated attempts by the SSC management to point the guilt to certain of the accused, in particular Accused 1, for the ill-fated investment by false representations would in no way aid the State in its “problem-ridden” attempts to prove the allegations of fraud and theft against Kapia.
In fact, Namandje said, it was due to unsolicited political favour coupled with a venomous blend of incompetence, foolishness, ignorance, insubordination and arrogance on the part of the three senior managers of the SSC which prejudiced the corporation.
In the end, he said, the State did not even begin to prove any of the allegations against Kapia and there was no case made out warranting him to be placed on defence.
Today (Wednesday) Werner Boesak for accused two Ines /Gases will present his arguments on why he feels his client should be discharged.