WINDHOEK – Judge Christi Liebenberg on Friday dismissed an objection from Paulus Kapia’s defence counsel who had sought that the court dismiss the case against his client on grounds that the Companies Act was repealed.
The dismissal of the objections of defence lawyer Sisa Namandje now means that the National Assembly backbencher Kapia and his co-accused will have to answer to charges related to the Companies Act of 1973. The charges are reckless or fraudulent conduct of business, false statements by directors and others, failure to keep accounting records, failure to lodge consent, failure to keep a register, failure to keep minutes/a minute book, failure to keep and sign an attendance book and providing false evidence.
Namandje had argued that Kapia and his co-accused should not be made to answer to charges relating to the Companies Act of 1973, which was repealed. In his ruling Judge Liebenberg found that the provisions of a proclamation of 1920 state, ‘Where a law repeals any other law, then, unless the contrary intention appears, the repeal shall not affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, forfeiture, or punishment as is in this subsection mentioned; and any such investigation, legal proceedings, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repealing law had not been passed.’ This allows the State to prosecute the accused under the provisions of the repealed Companies Act of 1973, the judge said.
In addition to these charges Kapia and his c-accused face one count of fraud alternatively theft and one count of corruptly accepting gratification, while lawyer Otniel Podewiltz alone faces a charge of corruption. All the charges are in connection with a botched N$30-million investment that the Social Security Commission made with asset management company, Avid Investment Company, and channelled through another asset management company, Namangol Investments, in January 2005.
According to Liebenberg, the argument of the defence counsels that the legislature did not provide for the transition of transgressions in the new Act clearly disregard the provisions of the Interpretation of Laws Proclamation which specifically provides for transitional procedure in the absence of any similar provision in the (new) Act. The judge said: “This is not the only conclusion one could reach when interpreting the provisions of the 2004 Act. The Legislature in all its wisdom could equally have decided not to insert a transitional provision especially in view of the provisions of the Interpretation of Laws Proclamation which has to date not been repealed; neither is there reason to believe that it will not pass muster as far as it concerns constitutionality. Article 140 (1) of the Constitution clearly states that ‘all laws which were in force immediately before the date of Independence shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent court’. The constitutionality of Proclamation No. 37 of 1920 has not been challenged during these proceedings and as such the proclamation is still in force and forms part of the laws of Namibia.
I have no doubt that notwithstanding the Companies Act of 2004 not containing any transitional provision in respect of criminal proceedings, it could never have been the Legislature’s intention that offences committed prior to the enactment of the present Companies Act, could no longer be prosecuted once that Act came into effect.”
Kapia and his co-accused Inez Gâses represented by Werner Boesak, Otniel Podewiltz and husband and wife Sharon and Ralph Blaauw represented by Christie Mostert, retired Brigadier Mathias Shiweda represented by Richard Metcalfe and Nico Josea represented by Slysken Makando on instructions of legal aid will return to court today to formally plea to the charges. They are all out on bail of N$10 000.
By Roland Routh