WINDHOEK - Former CEO of the Roads Contractor Company (RCC), Kelly Nghixulifa has requested the Windhoek High Court Judge Christi Liebenberg to quash counts 1, 6, 9 and 10 in the indictment he faces in relation to charges of fraud and contravening the ACC Act.
Nghixulifa, 59, who resigned after the ambitious supposed construction of B1 City opposite the Katutura hospital is facing 10 charges of fraud and contravening the Anti-Corruption Act with his business friends, Anna Ndoroma, 53 and 50-year old Hafeni Nginamwaami.
The charges against David Ndeshipanda Imbili, 43 were quashed after a successful application.
Nghixulifa alone face the 10 counts, Ndoroma faces 4 counts and Nginamwaami 4 counts.
At the centre of the matter is a loan of N4.8-million that Nghixulifa secured for Ae//Gams Engineering to purchase Erf 10485 along Independence Avenue.
Count 1 is contravening the Anti-Corruption Act by corruptly using office or position for gratification together with alternatives for fraud and theft in relation to the B1 City project.
Count 2 & 3 relates to fraud while count 4 deals with contravention of the Road Contractor Company Act, failing to disclose relations in contracts also in relation to B1 City.
Count 5 is contravening the Anti-Corruption Act and deals with using, holding, receiving or concealing gratification in relation to an offence or alternatively using property obtained from gratification on B1 City.
Count 6 deals with contravening the Anti-Corruption Act by corruptly using office or position for gratification in relation to the Cradle Investment.
Count 7 is contravening the Anti-Corruption Act by conspiring with another to commit an offence of corruption alternatively theft.
Count 8 is contravening the Road Contractors Company Act, failing to disclose relations in contracts in respect of Cradle Investments while count 9 relates to contravening the Anti-Corruption Act for corruptly using office or position for gratification by payment of Brian Nalisa FNB Home Loan mortgage arrears with RCC money alternatively theft.
Count 10 relates to fraud alternatively theft by false pretences or theft for allegedly duping Murray & Roberts and or Rudiger Saunderson that Cradle Investment acted as project facilitator for the construction of the RCC head office and was entitled to a commission of N$150 000.
Ndoroma and Nginamwaami face counts 2, 5, 7 and 10. They are supporting the application by Nghixulifa, but is asking the judge to dismiss all the charges against them for the simple reason that the RCC is and never was a public body and therefore Nghixulifa was never a public person.
According to Senior Counsel Vas Soni from South Africa who represents Nghixulifa, the test on which the Court must decide is in which category of public bodies the RCC falls. Is it an organ of the State, an agency or a State Owned Enterprise, he asked. He argued his client cannot be charged if the juridical requirements are not present.
These he said is whether the accused is a public officer, whether he used his position in a public body to receive gratification and whether he indeed received gratification. Silas Kishi-Shakumu who represents Ndoroma strongly argued that the State never proved RCC is a public body and therefore the indictment is defective. He said that all the charges must be quashed, as there is no chance that the State can salvage it, as the charges are materially defective.
Kadhila Amoomo on behalf of Nghinamwaami said the State failed to elect the precise charges on which the accused must answer. According to him the entire indictment is silent on the charges and that silence is chilling. According to Amoomo, the State’s approach is to say the least prejudicial on the accused, as it is very confusing.
State Advocate Hesekiel Iipinge submitted that the application was brought pre-maturely. According to him, the State should be given a chance in open court to prove its case and if it fails, the accused can be discharged. He said that at this stage of the proceedings, where the accused has not even pleaded, the State is unable to lead evidence to prove the RCC is a public body and Nghixulifa was a public person in terms of the Anti-Corruption Act.
Judge Liebenberg reserved his ruling on the application to October 17 at 09H00.